Stewart v. New Smyrna-coronado Beach Special Road & Bridge Dist. in Volusia County

• Decision Date: 10 February 1931
• Citation: 132 So. 636,101 Fla. 823
• Parties: STEWART v. NEW SMYRNA-CORONADO BEACH SPECIAL ROAD & BRIDGE DIST. IN VOLUSIA COUNTY et al.
• Court: Florida Supreme Court

132 So. 636

101 Fla. 823

STEWART v. NEW SMYRNA-CORONADO BEACH SPECIAL ROAD & BRIDGE DIST. IN VOLUSIA COUNTY et al.

Florida Supreme Court

February 10, 1931

En Banc.

Proceeding to validate the bonds of New Smyrna-Coronado Beach Special Road and Bridge District in Volusia County, by G. A. Tyler and others, County Commissioners, and another, opposed by Isaac A. Stewart. From a final decree validating the bonds opposer appeals.

Reversed.

Syllabus by the Court.

SYLLABUS

We do not decide, but leave open, the question of whether or not chapter 13497, Sp. Acts 1927, was a valid enactment in view of chapter 9657, Sp. Acts 1923, chapter 11280, Sp. Acts of 1925, and chapter 13513, Sp. Acts of 1927, Laws of Florida relating to the same subject-matter.

The appellee district as created by chapter 13497, Sp. Acts of 1927, Laws of Florida, is invalid under the decision of this court in Consolidated Land Company et al. v. Tyler, 88 Fla. 14, 101 So. 280. See also Willis v. Special Road & Bridge District No. 2 of Osceola County, 73 Fla. 446 74 So. 495.

Bonds not now issued as required by law are controlled by section 6 of article 9 of the Constitution as amended at the general election held November 4, A. D. 1930.

Appeal from Circuit Court, Volusia County; M. G Rowe, Judge.

COUNSEL

Stewart & Stewart, of De Land, for appellant.

Hull, Landis, & Whitehair, of De Land, for appellees.

OPINION

PER CURIAM.

This is an appeal from a final decree validating $325,000 of bonds proposed to be issued by appellee New Smyrna-Coronado Beach Special Road and Bridge District, in Volusia County, Fla. The appellee district was created by chapter 13497, Sp. Acts of 1927, Laws of Florida. The constitutional validity of said act is challenged on various and sundry grounds.

On account of the condition of the pleadings, we do not decide, but leave open, the question of whether or not chapter 13497 was a valid enactment in view of chapter 9657, Sp. Acts of 1923, chapter 11280, Sp. Acts of 1925, and chapter 13513, Sp. Acts of 1927, Laws of Florida relating to the same subject-matter.

On the showing made in the record, we are convinced that the appellee district as created by chapter 13497, Sp. Acts of 1927, Laws of Florida, is invalid under the decision of this court in Consolidated Land Company et al. v. Tyler, 88 Fla. 14, 101 So. 280. See also Willis v. Special Road & Bridge District No. 2 of Osceola County, 73 Fla. 446, 74 So. 495.

The bonds so validated not having been issued as contemplated by law, section 4674, Revised General Statutes of 1920 (section 6760, Compiled General Laws of 1927), are now controlled by section 6 of article 9 of the Constitution of Florida as amended at the general election held November 4, 1930. Potter v. Lainhart et al., 44 Fla. 647, 33 So. 251.

It follows that the decree of the chancellor below must be and is hereby reversed.

Reversed.

WHITFIELD, TERRELL, and BUFORD, JJ., concur.

STRUM, C.J., and BROWN, J., concur specially.

ELLIS, J., not participating.

CONCURRING

BROWN, J. (concurring).

While we may not consider the answer of the intervening taxpayer, the same having been erroneously captioned and hence not filed in this cause within the time fixed by the order of the court overruling the intervener's demurrer to the petition for validation as amended, it appears that the act purporting to authorize the bond issue is void on its face for some of the reasons pointed out in the intervener's demurrer, when tested in the light of the principles laid down in the Tyler and Willis Cases cited in the above opinion, and other decisions of this court.

The act here in question contains a fundamental defect which makes the entire act unconstitutional and void. It purports to create a large special improvement tax district, comprising approximately one-fourth the area of Volusia county, and authorize a bond issue for the purpose of 'constructing, building, reconstructing, repairing and hard-surfacing the following roads and bridges in said district and liberating said bridges from tolls and charges.' (section 2), describing two bridges in the northern portion of the district, and, 'Any roadway or highway within the boundaries of said district, which the Board of County Commissioners may deem advisable' (section 3). The act then proceeds to leave to the determination of the county commissioners the manner of construction and the nature of the material to be used, and authorizes the construction of such bridges or culverts as may be necessary. It also authorizes the commissioners to liquidate the indebtedness, without naming the amount, outstanding against the two named bridges, out of the proceeds of the bond issue. It also authorizes the county board to levy an annual ad valorem tax upon all the real and personal property in the district sufficient to pay the principal and interest of the bond issue.

The Legislature could not know in advance that the power to locate and build roads anywhere in the district the county commissioners might see fit to build them would confer any special benefits upon the district as a whole, so as to justify an assessment of the cost against all property in the district. For aught that the Legislature knew, the commissioners might decide to locate all the roads in the northern part of the district in such a way as to confer no benefit whatever upon the southern portion. So the act cannot amount to a legislative determination of such question of benefits, as might have been the case if the act had itself prescribed with some degree of certainty the location, route, or termini of such roads. The Legislature cannot be held to have determined what it could not possibly have known, nor can it be held to have been able to predict how the power thus delegated to the county board would be exercised. Without deciding the question, it might be observed that possibly the validity of an act of this sort might have been saved if it had provided for notice to and hearing of the owners of property in the district on the question of benefits as a condition precedent to authorizing the building of such roads as the county board might decide to build.

We are not here dealing with a constitutional governmental unit, such as a county, but with a special tax district. There is a vital difference between the two. In Jackson Lumber Co. v. Walton County, 95 Fla. 632, 116 So. 771, 786, this court said:

'The question of whether the contemplated roads or any of them will or will not confer direct or special benefits upon the property of the interveners is not the proper test of the validity of the contemplated tax, in a case of this kind. We are here dealing with a governmental unit--the county--not a special tax road district. If a public road will be a benefit to the county as a whole, or to any substantial part of the county where the same may be located, the failure of such road to benefit either directly or indirectly the property of individuals situated in some other portion or portions of the county would not prevent the road from being a legitimate

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