Thompson v. Town of Frostproof

• Decision Date: 07 February 1925
• Citation: 89 Fla. 92,103 So. 118
• Parties: THOMPSON et al. v. TOWN OF FROSTPROOF.
• Court: Florida Supreme Court

103 So. 118

89 Fla. 92

THOMPSON et al. v. TOWN OF FROSTPROOF.

Florida Supreme Court, Division B.

February 7, 1925

Petition by the Town of Frostproof to validate street paving bonds resisted by J. Wesley Thompson and others. From chancellor's order granting motion to strike answer defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Questions of power to issue and validity of issuance of bonds may be raised in validation suit. In bond validation suits under our law any question that goes to the power to issue and validity or regularity of the issuance of such bonds may be properly raised.

Bonds cannot be voted to improve streets not in existence. Bonds cannot be legally voted to improve streets, where no streets in law exist and it is not made to appear that they ever can or will exist.

'Valid,' defined. 'Validate,' 'validation,' and 'validating' are all derivatives of 'valid,' which is defined as meaning to test the validity of, to make valid, confirm, good or sufficient in point of law efficacious, executed with the proper formalities, incapable of being rightfully overthrown or set aside, sustainable and effective in law as distinguished from that which exists or took place in fact or appearance, but has not the requisites to enable it to be recognized and enforced by law.

Appeal from Circuit Court, Polk County; John G. Edwards, Judge.

COUNSEL

George W. Oliver, of Bartow, for appellants.

Peterson & Carver, of Lakeland, and L. C. Johnson, of Bartown, for appellee.

OPINION

TERRELL J.

Pursuant to charter provisions the town of Frostproof, in Polk county, voted to issue $115,000 of bonds for street paving, $10,000 of bonds for erecting a town hall, $10,000 of bonds for waterworks, and $5,000 of bonds to fund the floating debt of the town. A decree was entered by the circuit court validating these bonds under proceedings authorized by section 3296 et seq., Revised General Statutes of Florida.

Appellants by answer resisted the petition to validate as to the paving bonds on the ground that the paving proposed to be done was out of all proportion to the benefits flowing from such paving to the property owners; that the cost of such paving would in many instances be more than the abutting property was worth, thereby resulting in the confiscation of appellants' property; that in many instances the town of Frostproof has acquired no right of way, and in fact no streets have been designated where such paving is proposed to be done; that there are no such streets in said town as some of those proposed to be paved; that the town of Frostproof has taken no step to acquire rights of way, nor have the owners authorized said town to cross or improve by paving such streets over their lands where none have been acquired; and that there exists no public necessity for acquiring rights of way and paving where such streets do not exist.

A motion to strike the answer was granted, and appeal taken from the order granting such motion. The motion to strike alleges that the matters of defense set up in the answer in no respect show that the bonds are invalid, and if they did they are not proper to be raised in a validation proceeding.

Statutory proceedings for validating municipal and other bonds are new in the law, and while our courts have not been often called on to construe them they have a welldefined purpose and meaning. Chapter 6237, Acts of 1911, as revised and enlarged by chapter 6868, Acts of 1915 (now section 3296 et seq., Rev. Gen. Stats. of Fla.), is the law on the subject in this state.

'Validate,' 'validation,' and 'validating' are all derivatives of 'valid,' which is defined in the Century Dictionary as meaning to test the validity of, to make valid, confirm, good or sufficient in point of law, efficacious, executed with the proper formalities, incapable of being rightfully overthrown or set aside, sustainable and effective in law as distinguished from that which exists or took place in fact or appearance but has not the requisites to enable it to be recognized and enforced by law. 39 Cyc. 1115; Smith v. Mayor, etc., of City of Dublin, 113 Ga. 833, 39 S.E. 327, where an illuminating discussion of the Georgia law on the same subject is found.

Our statute (chapter 6868, Acts of 1915) for validating and confirming municipal bonds is said to have been drawn from the Georgia law. The petition brings in question the right and authority of the municipality or other taxing unit to issue the bonds, together with all proceedings taken in connection with their issue. The law further requires the state attorney to 'carefully examine' the...