Town of Monticello v. Finlayson

• Decision Date: 16 November 1945
• Parties: TOWN OF MONTICELLO v. FINLAYSON et al.
• Court: Florida Supreme Court

23 So.2d 843

156 Fla. 568

TOWN OF MONTICELLO v. FINLAYSON et al.

Florida Supreme Court

November 16, 1945

Rehearing Denied Dec. 17, 1945.

Appeal from Circuit Court, Jefferson County; E. C. Love judge.

Ausley Collins & Truett, of Tallahassee, for appellant.

D. A Finlayson, and Davis, Davis & McClure and Chas. E. Davis, all of Madison, for appellees.

BROWN, Justice.

Appellant contends that the decree appealed from should be reversed because it is contrary to the opinion and judgment of this Court on the prior appeal (154 Fla. 274, 17 So.2d 84) in that said decree failed to allow any interest on the assessments against the property of appellees.

The main question presented on this appeal is the contention of appellees that the decree appealed from should be affirmed because the provision of Chapter 9298, Laws of 1923, authorizing interest on assessments against property benefited by municipal improvements is not within the title of the statute.

The last time this case was before this court, prior to the present appeal, it was on an appeal taken by the Town of Monticello, plaintiff in the court below, from a final decree, on pleadings and proof, dismissing the bill of complaint. Said final decree sustained defendant's first exception to the Master's report, which exception was in substance that the evidence had failed to prove the allegations of the bill to the effect that the town had acted pursuant to Chapter 9298, Laws of Florida 1923, with reference to the determination of benefits and the assessments therefor against defendants' property, but on the contrary that the evidence showed that the defendant's property was not benefited and that the town's action was not in accord with the applicable requirements of said statute in various respects point out, and that the assessments made by it were, in toto, a nullity. As above stated, the chancellor in his final decree sustained this first exception to the Master's report, and dismissed the bill on that ground without ruling upon the other exceptions, among which were the eleventh and twelfth exceptions.

This eleventh exception attacked the finding of the Master that there was due on the several liens $1,541.30 of pincipal and interest thereon in the amount of $2,087.98, on the ground that such conclusion was based on evidence that should have been ruled out on defendants' objection, 'and for the further reason that interest on the assessments is not chargeable against the property under the controlling statute.' The twelfth exception was to the finding by the Master as to the total amount due, and raised the same grounds. The chancellor did not rule upon either of these exceptions, nor did either of them clearly raise the constitutional question contended for by appellees on this appeal.

This final decree in favor of Mrs. Finlayson and her husband was appealed to this Court by the Town of Monticello, and this Court reversed the decree, 'with directions to enter one for the appellant for the amounts which may be easily calculated from the evidence and the master's report.' See Monticello v. Finlayson, 154 Fla. 274, 17 So.2d 84, 88. The Master's report showed the amount of each assessment together with the accrued interest thereon. In the opinion on that appeal it was said that every material allegation of the bill was proven, and that the only appropriate decree would have been one for the plaintiff. The case was remanded to the Circuit Court and thereafter the learned chancellor set aside his former decree and rendered one in favor of the town for a total sum representing the principal amount found to be due on each of the assessment liens, but, contrary to the master's report, omitted the allowance of any interest thereon. Appellees paid the amount so found to be due. From this decree the Town of Monticello has taken this appeal.

Our former opinion, impliedly at least, approved the Master's report by saying that the chancellor should render a decree in favor of the appellant 'for the amounts which may be easily calculted from * * * the master's report.' Said report allowed interest on the unpaid assessments. The appellant's bill sought to enforce liens upon the property of appellees for the amounts remaining unpaid on the several assessments, together with interest thereon. The question of the legal right of the town to collect interest on the assessments was not expressly raised in the pleadings, nor in the briefs and oral arguments submitted on the prior appeal. Appellees contend that it was not incumbent upon them to raise it at that tiem, as the decree then appealed from was entirely in their favor, and held that they did not owe the town of Monticello anything at all, but that now the decree here appealed from allows the principal sum due on the unpaid assessments, without making any allowances whatever for interest, and that it is perfectly appropriate for them to uphold said decree, in so far as it is in their favor, if they can; and so they contend that they are justified in raising the constitutional question above referred to. The appellant, just as plausibly, contends that the entire law of the case, including the allowance of interest, was necessarily settled by the language of the court's opinion as reported in 154 Fla. 274, 17 So.2d 84.

Be that as it may, this court has held that a fundamental error, based on the unconstitutionality of a statute, can be raised for the first time in the Supreme Court. Parker v. Town of Callahan, 115 Fla. 266, 156 So. 334.

The act, in sections 9 and 10, clearly provides that the assessments for street and sidewalk improvements shall bear interest at eight percent per annum, and that they may be made payable in ten equal annual installments, with accrued interest on all deferred payments, unless paid within thirty days after said assessments shall stand approved and confirmed.

Appellees contend that the provision for interest on the unpaid assessments is not within the scope of the title to the act. The title of said chapter 9298, omitting the erroneous repetition of one line, a manifestly harmless typographical error, reads as follows: 'An act providing a supplemental, additional and alternative method of making local improvements in cities, towns, and municipal corporations, authorizing and providing for special assessments for the cost thereof, * * * and authorizing the issuance and sale of bonds of such municipalities in connection with said local improvements, said bonds to be general obligations of the municipalities.'

This chapter 9298 appears to have been incorporated in the Compiled General Laws of 1927, sections 3022-3042, and in Florida Statutes 1941, sections 170.01 to 170.21, F.S.A., but such incorporation in the Compiled General Laws of 1927 which was a mere compilation, would not have cured any constitutional defect in the title of the act, or rendered it innocuous. The effect of the incorporation of this statute in the Fla. Statutes 1941, in that regard, would have been different (State v. Lee, Fla., 22 So.2d 804), but it is not necessary for us here to consider, as these assessments were made and this suit filed to enforce them some time before the revision of our statutes, adopted by the legislature in 1941, became effective. So, in the instant case, we need only to look to the original act and its title.

Ever since Walters v. City of Tampa, 88 Fla. 177, 101 So. 227, and Atlantic C. L. R. Co. v. Lakeland, 94 Fla. 347, 115 So. 669, there have been numerous attacks on constitutional and other grounds, upon this statute, or its applicability, but the particular attack now made here, as to the provision for interest, is new, in so far as our reported cased show; nor does it appear that the question was raised by appellees when they appealed from the order denying their motion to dismiss the bill filed by the town of Monticello (see 137 Fla. 697, 189 So. 21), but they did later take issue on the allegations of the bill. And appellees also claim that they raised this question in the certiorari proceedings. See 144 Fla. 724, 198 So. 577. This may be true, but it was not mentioned in the case as reported, as the case went off on another point. We will take counsels' word for that, as they are honorable and eminent members of the bar of this Court.

While we have recognized, in the case of Baker v. Town of Dunnellon, 117 Fla. 324, 158 So. 105, that interest could be collected on assessments made under this statute, the opinion in that case dealt with the reduction of excessive interest erroneously allowed by the decree appealed from due to a factual error; no constitutional having been raised. Counsel for the respective parties agreed that the reduction should be made.

Appellees cite the case of Webb v. Scott, 129 Fla. 111, 176 So. 442. That case dealt with two special statutes relating to assessments for the paving of public highways. It was held in that case that attorney's fees are recoverable only when provided for by contract or by statute, and that such fees were not recoverable in that case because, though provided for in the...