Town of Davenport v. Hughes

Decision Date13 May 1941
Citation147 Fla. 228,2 So.2d 851
PartiesTOWN OF DAVENPORT et al. v. HUGHES et al.
CourtFlorida Supreme Court

Rehearing Denied June 27, 1941.

En Banc.

Appeal from Circuit Court, Polk County; H. C. Petteway judge.

Robert T Dewell, of Haines City, for appellant Town of Davenport.

Wylie &amp Warren, of St. Petersburg, and D. C. Hull and Hull, Landis & Whitehair, all of De Land, for appellant G. H. George.

Milam, McIlvaine & Milam, of Jacksonville, for appellees.

BUFORD Justice.

This is the second appearance of this case here. See Hughes v. Town of Davenport, 141 Fla. 382, 193 So. 291, in which we held:

'Proceedings to validate bonds issued by a town and a judgment in the proceedings did not preclude a taxpayer from asserting that his property was unconstitutionally included in boundaries of town by act of Legislature, since such issue could not be tried in validation suit. * * *

'Judgment in a mandamus action instituted by a bondholder requiring officials of a town to levy taxes to service bonds issued by the town does not preclude a landowner owner from contesting validity of assessment ordered against his property, since landowner is not a party to mandamus proceeding.

'Where special statute under which Legislature attempted to include certain land in town was unconstitutional in so far as it sought to include land within boundaries of town because land would not receive any municipal benefits, statute did not confer upon the town either de jure or de facto jurisdiction to levy taxes on the land to pay municipal bonds issued subsequent to passage of statute and prior to judgment in quo warranto proceeding ousting lands from boundaries of town.'

That opinion and judgment became the law of the case. After the case was remanded to the lower court answers were filed by the defendants George and Town of Davenport. Order of reference was made; testimony was taken and final decree was entered which in effect holds, upon findings of fact, that the lands involved when attempted to be included in the Town of Davenport were not susceptible of receiving any municipal benefits and that, therefore, the statute did not confer upon the Town either de jure or de facto jurisdiction to levy taxes on the lands to pay municipal bonds subsequent to the passage of the statute and prior to the judgment in quo warranto proceedings ousting such lands from the jurisdiction of the municipality.

The record shows that in 1917 the Town of Davenport was created by Legislative Act, Sp.Laws 1917, c. 7637, and comprised 720 acres. In 1925 the Legislature passed a Special Act, Sp.Laws, 1925, c. 10463, extending the Town limits to include an additional 880 acres. Thereafter, the Town validated and sold seven bond issues for various municipal improvements.

In 1932 and Attorney General joined by various landowners instituted a proceeding in quo warranto to exclude from the Town limits all territory added by the 1925 Act, and a judgment of ouster was entered excluding 720 acres upon the ground, in effect, that such territory illegally added to the municipality lands not needed or suited to municipal purposes and were, therefore, excluded. No bondholders were made parties defendant to the quo warranto action.

In 1938 G. H. George obtained a peremptory writ requiring the levy of taxes on all property included in the Town by the 1925 Act for the payment of certain bonds held by him. The Town then levied debt service taxes on these lands which were previously excluded by the ouster judgment, and plaintiffs brought this action to enjoin such levy and decree that their lands be not subject to taxes for debt service. The Chancellor granted the above relief to plaintiffs.

The parties plaintiff (appellees) are: J. W. Hughes, who purchased 10 acres in the excluded area, 1/4 mile west of present limits, in 1937, from a Dr. Charles A. Lauffer; Goldie A. Trauger (substituted for H. B. Trauger, deceased), who owns 10 acres in the area abutting present limits, obtained from one J. D. Louis in 1933; P. G. Howe, who purchased 1/2 interest in 20 acres in excluded area in 1937; Wilson & Toomer Fertilizer Company, who foreclosed mortgage on some 5,000 acres owned by Holly Hill Grove & Fruit Co., and purchased property at the Master's sale. The defendants (appellants) are: The Town; and G. H. George, who holds bonds of three of the issues.

The principal issue is whether or not the plaintiff's specific properties have received or are capable of receiving municipal benefits.

The evidence shows that the lands involved are solely agricultural and chiefly devoted to citrus. (Defendant's witness, tr. 217-218.) The record shows there were only two farm houses on this property in 1925; today there are three, with six inhabitants of the area. The record further shows that no municipal utilities were provided by the Town for this area, except water; that is, the electricity and telephone service is furnished by private resources, more or less, by contract between consumer and supplier without distinction as to location; the Town furnishes no police or fire protection; there are no sidewalks or paving in the area; the clay roads existing were built by the individual grove owners; there is no sanitary protection or garbage collection.

Water, however, is supplied by the Town. It has a water tank, pumping station, etc., but supplies water to persons residing beyond Town limits if they pay for installation. This is the way the plaintiffs received their water, although the Town has refunded the cost out of water used. It does appear that a fire hydrant is located on the Wilson & Toomer property. In this connection, the question of insurance rates was argued. It is true the rates increased when the area was excluded from the Town limits, but the insurance man inferred that that was only one factor involved in figuring the risk; and the increase was slight.

However, because the Town has stores, churches, library, etc., because its business is principally agricultural, and because the plaintiffs' properties are all from 3/4ths mile to 2 miles from the center of Town, the defendants contend the plaintiffs are receiving benefits--due to their using the streets on trips to Town, easy accessibility. But it clearly appears that no money derived from the sale of municipal bonds was expended in the area excluded unless it was for water.

Another question presented is: Are plaintiffs, the Wilson & Toomer Company, estopped by acts of predecessors in title? It is shown that the Holly Hill Grove & Fruit Co. was very active in developing this section, and that many of its employees served on the Town Council between 1920 and 1930. Because the directors of this Company and of Wilson & Toomer Co. were in some instances the same, defendants have attempted to show an estoppel against Wilson & Toomer Co. because of the activity of the ...

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7 cases
  • Frankel v. City of Miami Beach
    • United States
    • Florida Supreme Court
    • 23 Septiembre 1976
    ...decision is also in conflict with this Court's decisions in City of Miami v. Keton, 115 So.2d 547 (Fla.1959); Town of Davenport v. Hughes, 147 Fla. 228, 2 So.2d 851 (1941); State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938......
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    • Florida Supreme Court
    • 21 Diciembre 1948
    ... ... This is not a ... sufficient answer. State ex rel. Davis v. Town of Lake ... Placid, 109 Fla. 419, 147 So. 468, 472; City of ... Coral Gables v. State, ex rel ... Attorney General v. City of Avon Park, 108 Fla. 641, 149 ... So. 409; Town of Davenport v. Hughes, 147 Fla. 228, ... 2 So.2d 851, certiorari denied 314 U.S. 681, 62 S.Ct. 183, 86 ... ...
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    • United States
    • Florida District Court of Appeals
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    ...was one of common interest to all members of the class. Allen v. Avondale Company, 1938, 135 Fla. 6, 185 So. 137; Town of Davenport v. Hughes, 1941, 147 Fla. 228, 2 So.2d 851; City of Miami Beach v. Tenney, 1942, 150 Fla. 241, 7 So.2d 136. See also Skinner v. Mitchell, 1921, 108 Kan. 861, 1......
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