Tervin v. State Ex Rel. Landis
| Decision Date | 25 September 1934 |
| Citation | 116 Fla. 633,156 So. 627 |
| Court | Florida Supreme Court |
| Parties | TERVIN et al. v. STATE ex rel. LANDIS, Atty. Gen., et al. |
Rehearing Denied Oct. 12, 1934.
Error to Circuit Court, Manatee County; W. T. Harrison, Judge.
Quo warranto by the State, on the relation of Cary D. Landis, as Attorney General and others, to oust Wallace Tervin and another from exercising the powers of a public corporation under the name of the Bishop's Harbor Drainage District in the county of Manatee. To review a judgment of ouster Wallace Tervin and another bring error.
Modified and affirmed.
COUNSEL Sam Bucklew, John M. Allison, and Knight Thompson & Turner, all of Tampa, for plaintiffs in error.
Cary D Landis, Atty. Gen., G. P. Smythe, of Bradenton, Grimes & Rowe, of Palmetto, D. G. Haley and Sidney R. Perry, both of Sasasota, and Carey & Askew, of St. Petersburg, for defendants in error.
Dewey A. Dye, of Bradenton, amicus curiae.
This case is before us on writ of error to review the judgment of ouster in quo warranto proceedings. The proceedings were filed by the Attorney General and certain corelators seeking to oust Wallace Tervin and V. H. Osborn from exercising the powers of a public corporation under the name of Bishop's Harbor drainage district in the county of Manatee, Fla.
It was alleged that Wallace Tervin pretended to be, and claimed authority as, a supervisor of such drainage district, and that V. H. Osborn claims to be the receiver of Bishop's Harbor drainage district, both without authority of law and in violation of the Constitution.
It was also alleged that two othr persons had at one time pretended to be supervisors with Tervin, constituting the board of three supervisors of the named drainage district, but that one of such supervisors had died and no successor had been appointed, and that the other had long since left the state of Florida and no successor to him had been appointed.
The record shows that on the 17th day of October, 1927, a petition was filed by certain property owners in Manatee county in the office of the clerk of the circuit court of Manatee county praying for the formation of a drainage district to be known as Bishop's Harbor drainage district. Notice of said petition was filed and published. A hearing was held on December 15, 1927, before Circuit Judge Paul C. Albritton, judge of the circuit court in and for the Twenty-Seventh judicial circuit of Florida, in the absence of Hon. W. T. Harrison, judge of the Eighteenth judicial circuit of Florida, in which latter circuit the lands were located, at which time a decree was entered by Judge Albritton establishing what was known as Bishop's Harbor drainage district.
A petition for appointment of the three commissioners was filed, and, after notice, an order appointing such commissioners to appraise said land was entered on March 24, 1928, by Judge Harrison. Subsequent thereto notice of filing of commissioners' report was entered, which report was confirmed on May 18, 1928.
On December 30, 1927, the office of secretary of state at Tallahassee, Fla., advised that certified copy of the decree of the circuit court establishing Bishop's Harbor drainage district had been filed in that office. Following report of the commissioners, a petition was filed by the pretended district on May 9, 1928, to validate certain bonds. The state of Florida was made a party defendant. A notice addressed to all taxpayers and citizens of the district was filed in the office of the clerk of the circuit court of Manatee county and was published as required by provisions of section 3297, Rev. Gen. St. section 5107, Comp. Gen. Laws. In due course decree pro confesso was entered against all parties except the state. The state of Florida, by and through the state's attorney of the Eighteenth judicial circuit, filed an answer as required by section 3297, Rev. Gen. St., section 5107, Comp. Gen. Laws, which answer demanded proof of allegations of the petition.
It appears there was no proof of the allegations of petition, but decree was entered by the circuit court of Manatee county validating the bonds and declaring all the proceedings leading up to the issue and sale of the said bonds to be validated, approved, and confirmed. The bonds were then issued and sold. The bonds became in default, and the holder of the bonds instituted suit, and in that suit a receiver was appointed by the circuit court of the Eighteenth judicial circuit. The receiver named was V. H. Osborn. He qualified as such receiver, and, when he sought to enforce the payment of the taxes assessed against the lands in the purported district for the purpose of paying the bonds in default, this proceeding in quo warranto was instituted.
On final hearing, judgment of ouster was entered.
The members of this court have never been in harmony in holding the provisions of chapter 6458, Acts of 1913, being section 1098 et seq. Rev. Gen. St., section 1451 et seq., Comp. Gen. Laws, providing for the formation and creation of a drainage district to be constitutional and valid, but the court, by a majority opinion, has so held, and therefore the validity of these statutory provisions is no longer in question.
Assuming the statute to be valid, and we do, and that the power is vested in the circuit courts of the state to by decree establish drainage districts in accordance with the provisions of the act and confirming and validating the proceedings instituted for that purpose (see Towns et al. v. State ex rel. Attorney General, 102 Fla. 188, 135 So. 822), we must hold that this is a statutory proceeding and that the court only acquires jurisdiction to render its decree by petitioners complying strictly with the provisions of the statute and in this matter it is only necessary for us to discuss that phase of the questions presented here.
Section 1098, Rev. Gen. St. section 1451, Comp. Gen. Laws, provides in part as follows:
'The board of drainage commissioners of this State, or a majority either in numbers or in acreage, of the holders of any contiguous body of wet or overflowed lands, or lands subject to overflow, situate in one or more counties in this State, may form a drainage district for the purpose of having such lands reclaimed and...
To continue reading
Request your trial
-
Hinton v. Iowa Nat. Mut. Ins. Co.
...any orders pertaining to the party, even though erroneous, must be attacked on appeal at the risk of becoming final. Tervin v. State, 1934, 116 Fla. 633, 156 So. 627. If Hinton wished to overcome the effect of the final judgment being entered against Dellinger and Iowa National, it was incu......
-
Municipal Bond & Mortgage Corp. v. Bishop's Harbor Drainage Dist.
...the order. The case is now before this court on appeal from said order. In the case referred to in the bill of complaint, Tervin v. State, 116 Fla. 633, 156 So. 627, Court held that the order of the Circuit Court purporting to establish the Bishop's Harbor Drainage District was void. It was......
-
Union Camp Corp. v. Seminole Forest Water Management Dist., S--336
...a majority of all contiguous lands subject to overflow there could not be 'two or more adjacent districts.' In Tervin v. State ex rel. Landis, 1934, 116 Fla. 633, 156 So. 627, the Supreme Court of Florida described the requisite signatures for a drainage district petition as those of 'a maj......
- Smith v. Zeagler