Stein v. Darby, C-41
| Decision Date | 24 January 1961 |
| Docket Number | No. C-41,C-41 |
| Citation | 126 So.2d 313 |
| Parties | Abe STEIN and Alice N. Stein, his wife, Appellants, v. Fred W. DARBY and Jack Darby and Seaboard Air Line Railroad, a corporation, Appellees. |
| Court | Florida District Court of Appeals |
James H. Bunch and J. Quinton Rumph, Jacksonville, for appellants.
Botts, Mahoney, Whitehead, Ramsaur & Hadlow, Jacksonville, for appellees.
This is the second appeal of this case. See Stein v. Darby, Fla.App., 114 So.2d 368, 372. As the facts of the case are fully set out in the opinion on the first appeal no useful purpose would be served to repeat them.
On that appeal this court reversed the trial court's order dismissing the plaintiff's complaint as to the defendants Darby, for reasons recited in the opinion. As to the defendant Seaboard, which we shall hereafter refer to as the Railroad, this court affirmed the lower court's order which dismissed the cause as to the Railroad, but remanded the cause with directions that plaintiffs be allowed ten days from date of the filing of this court's mandate within which to amend their complaint to allege that their property lies without the boundaries of any municipality, if they be so advised. This court further held that 'upon the filing of such amendment, the cause shall proceed as provided by law,' but 'if no such amendment is filed by plaintiffs within the time (therein) limited, the order of dismissal with prejudice as to defendant Seaboard shall stand affirmed.' Upon the mandate going down the plaintiffs amended to allege that their property lies without the boundaries of any municipality. The Railroad again moved to dismiss upon grounds hereinafter stated, and the trial court again sustained the motion and dismissed as to the Railroad, with prejudice, and upon grounds stated in the order. From this order, and an order denying a petition for rehearing by plaintiffs, the latter appealed to this court.
We are at the outset confronted with the proposition as to whether the action of this court in affirming the trial court's order dismissing the suit as to the defendant Railroad, but in remanding the cause with leave to plaintiffs to amend to allege that their property lies without a municipality, coupled with plaintiffs' last amendment to meet that particular objection reised on the first appeal, in effect foreclosed against the Railroad the question of the statement of a cause of action against it in the complaint as last amended. The answer depends upon a determination as to what was decided by the lower court in sustaining the Railroad's motion to dismiss before the first appeal, and of course, the effect of this court's decision on the first appeal as it relates to that question.
The complaint, before the last amendment made in pursuance of this court's mandate, sought a decree of the Circuit Court of Duval County which would grant plaintiffs a way of necessity across the Railroad's right of way to reach a certain public highway, under authority of F.S. Section 704.01(2), F.S.A., as well as certain relief against the Darbys with which we are not concerned on this appeal. The Railroad moved to dismiss on the ground that the complaint failed to state a cause of action on which the relief prayed for could be granted against it. The lower court sustained the motion to dismiss without specifically stating any reasons therefor. It is to be presumed that the trial judge agreed with the Railroad that the complaint stated no cause of action against it. On the first appeal the Railroad argued here that the trial judge's order as to it should be sustained because of the failure of the complaint to allege that plaintiffs' property lies without the boundaries of any municipality. This court sustained the trial judge's order on that ground and remanded the cause with leave to supply this deficiency. After such amendment by plaintiffs the Railroad again moved to dismiss on the specific grounds (1) that the complaint as last amended fails to state a cause of action, (2) that the complaint seeks to take unlawfully the Railroad's private profperty, or an interest therein, for private use pursuant to F.S. Section 704.01(2), F.S.A., and (3) that said statute is unconstitutional in that it purports to authorize the taking of private property for private use. In support of the second and third grounds it is contended that the statute violates Section 1, Declaration of Rights, F.S.A., and Section 29, Article XVI, of the Florida Constitution, F.S.A. The trial judge sustained this motion on the ground that the application of the statute to the circumstances related in the complaint would constitute the exercise of a power in contravention of Sections 1 and 12 of the Florida Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States.
While the parties have not questioned jurisdiction of this court to entertain this appeal involving as respects the defendant Railroad a final decree of the trial court passing on the validity of a statute, it is well recognized that when in doubt the question of jurisdiction should be raised by the court.
Section 4(2), Article V, Constitution of Florida, provides that 'Appeals from trial courts may be taken directly to the supreme court, as a matter of right, * * * from final judgments or decrees directly passing upon the validity of a state statute * * * or construing a controlling provision of the Florida or federal constitution * * *'; further, that 'Appeals from district courts of appeal may be taken to the supreme court, as a matter of right, * * * from decisions initially passing upon the validity of a state statute * * * or initially construing a controlling provision of the Florida or federal constitution.' The jurisdictional problem with which we are confronted has not been settled and in holding as we do that this court is vested with jurisdiction in the premises, we proceed on the theory that under the above-quoted provisions of the constitution there exists the right of appeal to the Supreme Court from the precedent of this decision initially passing on the validity of a statute. We recognize also that under the constitutional provisions governing jurisdiction of the several courts it may logically by determined that jurisdiction to review an order of the nature in question rests exclusively in the Supreme Court. The question does not appear thus far to have been presented to the Supreme Court for determination. In deference to whatever disposition may be made by the Supreme Court in disposing of this decision, which we have determined to certify to that court for consideration, we think it pertinent to acknowledge the appearent concept of the position of the Supreme Court under Article V of the state constitution as adopted in 1956, that is to say: that the great and overriding function of that body, aside from the original jurisdiction exercised by it, is to provide uniformity in the case law by resolving conflicts in decisions and passing ultimately upon the written law--statutes, constitutions, and treaties.
Reiterating a time-worn syllogism, the primary virtue of our form of jurisprudence is its adaptability to changing conditions its recognized responsibility and ready capacity to so knead the law as to reflect the development of a progressive and enlightened social order. In that process it is axiomatic that exceptions prove the rule and that bas precedents do not nmake good law. Applying these concepts to thestatutory and constitutional provisions with which we are concerned on this appeal, we hold that Section 704.01(2), Florida Statutes, F.S.A., is clearly constitutional and that the second amended complaint, framed in accordance with the decision of this court on the prior appeal, is legally sufficient to state a cause of action against the defendant Railroad.
The order of dismissal resulting in the former appeal was triggered by the defendant Railroad's motion to dismiss the complaint on the sole ground that it 'fails to state a cause of action against this defendant.' The identical ground, and none other, is the predicate for the motion to dismiss resulting in the order now on review, which dismissed the complaint as to only the defendant Railroad on a finding that F.S. Section 704.01(2), F.S.A. would permit the exercise of a power in contravention of Sections 1 and 12 of the Declaration of Rights of the Florida Constitution and the Fourteenth Amendment to the Constitution of the United States. Other defendants, whose motion to dismiss was denied, did not elect to appeal. Although not determinative of our conclusions, we deem it appropriate to note that although the sole point for determination on this appeal--the question of the constitutionality of the act in its application to the rights of the defendant Railroad--was relevant to the defendant Railroad's position before the trial court on the occasion of the entry of the first order appealed, and also before this court on the hearing of that appeal, the subject was not presented to this court in support of the order of dismissal formerly reviewed. Orderly procedure indicates that this should have been done. Failure to do so unquestionably left the door ajar for this appeal involving substantially the same question of law which might have been resolved on the first appeal and thereby subverts the objectives of Florida Appellate Rule 4.2, 31 F.S.A.
A careful analysis of the statute compels the conclusion that the result contemplated thereby serves a public purpose as distinguished from a public benefit; that it provides a lawful means by which to accomplish full utilization of the state's natural resources, their development in the ordinary channels of commerce and industry. Such is a major purpose of all forms of organized society.
In determining whether particular facts present a situation meeting the test of 'public purpose' as distinguished from ...
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