State, Ex Rel. v. City of Pompano , 136 Fla. 730 ( 1938 )

This is a proceeding in mandamus brought by the bondholders to compel municipal taxation of all taxable property including homesteads in the city limits as defined by Chapter 13324, Acts of 1927, to pay general obligation bonds issued by the City of Pompano under charter authority before a judgment of ouster in quo warranto excluded the jurisdiction of the city from a large area annexed to the original municipality by Chapter 13324, State, ex rel., v. City of Pompano, 113 Fla. 246, 151 So. 485. The judgment of ouster is upon the ground that the added area was sparsely settled and not needed for habitation or municipal purposes, and that Chapter 13324 is invalid insofar as it added such area to the city limits, such addition of rural lands, being an abuse and excess of legislative power under Section 8, Article VIII, of the Constitution. The adjudged partial invalidity of Chapter 13324 was not because the form of the statute violated Section 16, Article III of the Constitution, as did Chapter 11301 in City of Winter Haven v. Klemm, 132 Fla. 334, 181 So. 153, relied on by counsel for both parties.

The above cited Klemm case was a suit, not by a bondholder, but by a citizen taxpayer to enjoin municipal taxation of plaintiff'sdescribed land to pay municipal bonds that were issued and used for municipal purposes before the de jure municipal jurisdiction of the city under a statute, was ousted by quo warranto judgment from an area, not covered by the title of the Act, that had been annexed to the city limits by statute. Such excluded area embraced plaintiff's described land, and some of the improvements made by the use of the bond money being in the area including plaintiff's land. The nature and location of the plaintiff's land making it incapable of receiving any benefit whatever by being included in the municipality, was not a ground for affirming the ouster judgment. State, ex rel., v. City of Winter Haven, 114 Fla. 199,154 So. 700. The plaintiff in the Klemm case in effect contended that the judgment of ouster relieved his land of all municipal taxation whether the ousted municipal jurisdiction was de jure or defacto.

In the Klemm case and in this case the quo warranto judgments having reference to future, not past, municipal jurisdiction and authority, ousted the municipalities from de jure jurisdiction of the added areas; but such judgments did not affect the valid bond obligations of the cities incurred upon the faith of the entire taxable statutory areas including the taxable added lands; nor did such ouster judgments affect the authority to tax lands that were within the de facto municipal jurisdiction of the cities prior to the ouster judgments, if the lands could lawfully besubjected to such taxation under the de facto jurisdiction of the cities without violating organic property rights. If any or all of the lands covered by the judgments of ouster are of such a nature and so located that neither the lands nor the owners thereof can receive any benefit whatever from being incorporated in the municipal limits, and the owners of the lands have not by waiver, estoppel or otherwise lost their right to resist municipal taxation under de facto jurisdiction and authority, the land may be excluded from such taxation by due course of legal proceedings, when such taxation would in effect deprive the owners of the lands of their property rights therein without due process of law in violation of the State and Federal Constitutions.

In State, ex. rel., v. Town of Holly Hill, 128 Fla. 385,174 So. 818, the improperly added territory was by statute eliminated from the town limits; and it was there said:

"There is no suggestion * * * that the portion (of the lands) eliminated was not proportionately benefitted with the present town."

In City of Winter Haven v. Klenn, 132 Fla. 334, 181 So. 153, the prima facie de jure jurisdiction of the city and its officers was by quo warranto judgment ousted from the illegally added rural lands; and the opinion stated (page 163):

"The bill of complaint seeks relief upon the ground that plaintiff's land was never legally within the city limits, and not upon the ground that plaintiff's land has not received and cannot receive any possible benefits from the municipality or from its public improvements, as in City of Sarasota v. Skillin,130 Fla. 724, 178 So. 837; State v. City of Avon Park, 108 Fla. 641, 149 So. 409."

The injunction suit of a taxpayer in the Klemm case failed because it was based upon an ouster judgment which did not affect bond obligations legally incurred by the de jure municipality in exercising de facto jurisdiction over plaintiff's land, the statute in that case being held to be defective in form under Section 16, Article III, Constitution. In this case the statutory provision adding the excessive area to the municipality was held to be an abuse and excess of the power conferred and limited by the intendments of Section 8, Article VIII of the State Constitution. In the Klemm case there was a defective exercise of power conferred, in that the title of the Act violated Section 16, Article III, of the Constitution. See also State, ex rel., v. City of Hollywood, 130 Fla. 364, 178 So. 412. In this case there was an ineffectual exercise of power in excess of that conferred by the intendments of the Constitution. In each case the statute was prima facie and presumptively valid, and conferred at leastde facto and prima facie de jure municipal jurisdiction over the lands until the prima facie de jure jurisdiction and authority of the cities were subsequently ousted by quo warranto judgments. Thereafter there could be no de jure jurisdiction of the cities over the lands covered by the judgments of ouster as long as the ouster judgments were effective.

In this case and in the Klemm case the statutory enactment was prima facie and presumptively valid, since the legislature has power to incorporate lands into a municipality, though in doing so, Section 16, Article III, of the Constitution should be complied with in framing the title of an Act; and the area limitation intendments of Section 8, Article VIII, of the Constitution, may be violated by the inclusion in the municipal limits of excessive areas of rural lands that are not needed or suitable for municipal purposes and that can receive no benefit whatever from being so included. Such status of prima facie validity of the statutes conferred prima facie de jure jurisdiction over the added lands, continued until the ouster judgments, covering improperly added areas of wild land, were rendered.

If a statutory provision prescribing the territorial boundaries of a municipality does not clearly show by its express terms a legislative intent to violate the Constitution, but the enactment does include in a municipal limits vastly excessive areas of rural lands that are unsuited and not needed for present or reasonably prospective municipal purposes, and no compensating benefits of any nature or kind whatever accrues to the land or its owners in municipal governmental service or protection, or in public improvements or otherwise, such unwarranted statutory inclusion of large areas of lands in a municipality may be ascertained or adjudged to be an abuse and excess of legislative authority under Section 8, Article VIII, of the Constitution; and the prima facie de jure municipal jurisdiction and authority over the lands or the excessive portions thereof may by appropriate action be ousted by judicial judgment, or the land may be withdrawn from the prima facie de jure jurisdiction of the municipality by statute. See State v. City of Largo, 110 Fla. 21, 149 So. 420.

Where municipal jurisdiction is legally withdrawn from vastly excessive areas that were incorporated by statute in a de jure municipality, there may be de facto municipal jurisdiction in such a de jure municipality to tax all or a part of the excluded areas to pay proportionately for duly authorized municipal bonds duly issued for authorized municipal purposes and sold to bona fide purchasers while the excessive areas were, by virtue of a presumptively valid statute, prima facie within the de jure jurisdiction of a de jure municipality. However, where such defacto municipal jurisdiction to so tax is asserted by the city or by bona fide bondholders, and such de facto jurisdiction is contested by, or for the benefit of, the owners of the excluded lands, as being an unconstitutional denial of due process and equal protection of the laws, because such lands or the owners thereof had received no possible benefit by the lands being so incorporated, it should be duly shown that the bonds are valid and that a tax on the lands to pay the bonds was duly authorized when the lands were de facto in the city limits; and also in enforcing a de facto municipal jurisdiction or authority to tax lands and to afford due process of law, it should be duly shown that the land to be taxed or its owners severally received or reasonably could have received some substantial benefit in governmental protection, municipal service or privileges, public improvements or otherwise, by the lands being incorporated in the municipality; unless the land owners severally by waiver, estoppel or otherwise, have lost their inalienable rights to possess and protect the lands against governmental taxation or other burdens except by due process of law and without a denial of the equal protection of the laws, as guaranteed by Sections 1 and 12, Declaration of Rights, State Constitution, and the Fourteenth Amendment to the Federal Constitution. It seems therefore that after the prima facie de jure municipal jurisdiction is duly withdrawn from areas not properly included in a municipality, the city officials are not per se the representatives of the owners of such excluded lands, and that when the de facto municipal jurisdiction or authority to tax the excluded lands is contested, such owners should be duly made defendants by representation or otherwise, in an appropriate judicial proceeding instituted to enforce the tax.

Section 4, Declaration of Rights, provides that:

"All courts in this State shall be open so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay."

Under the quoted organic provisions, it is the duty of the courts to administer right and justice by due course of law to the city, to taxpayers and to the creditors of the city, as their respective rights may be made to appear under the law interpreted according to the mandates of the supreme law of the land.

As the statute showed in the Klemm case, so the statute here considered, Chapter 13324, Acts of 1927, showed an intent to include the entire area described in the statutory boundaries of the City of Pompano; but at that time the limits of the legislative power in incorporating land areas in a municipality under the provisions of Section 8, Article VIII of the Constitution, had not been authoritatively determined as has since been done in numerous decisions of this court in the exercise of the judicial power vested in it by the Constitution of Florida. State, ex rel., v. City of Sarasota, 92 Fla. 563,109 So. 473; State, ex rel., v. City of Stuart, 97 Fla. 69,120 So. 335; 64 A.L.R. 1307; State, ex rel., v. City of Eau Gallie,99 Fla. 579, 126 So. 124; State, ex rel., v. City of Avon Park,108 Fla. 641, 149 So. 409; State, ex rel., v. Town of Lake Placid,109 Fla. 419, 147 So. 469; Town of Boynton v. State, 103 Fla. 1113, 138 So. 639; State, ex rel., v. Town of Boynton Beach,129 Fla. 528, 177 So. 327.

There is nothing in Chapter 13324 to indicate a legislativeintent to violate the limitation intendments of Section 8, Article VIII, as to the areas that may lawfully be incorporated in municipal limits, or to violate any other provision of the State or Federal Constitution.

This being so, there may be de facto municipal jurisdiction and authority in the City of Pompano, as incorporated by Chapter 13324, to tax the excluded lands for proper and lawful purposes under the express authority given by the charter Act to issue the bonds and to pay them by taxation of all taxable property in the city as defined in the prima facie valid provision of the statute when the bonds were duly issued for authorized municipal purposes. But as it is de facto municipal jurisdiction and authority to tax that is relied on, it should be made to appear, in order not to deprive the land owners of their property rights therein without due process of law, that the lands to be taxed or their owners were or could reasonably have been substantially benefitted by the municipal government or by its public improvements or otherwise, or it should be duly shown that the land owners have, under the law, by waiver, estoppel or otherwise, severally lost their rights to contest the validity of the municipal taxes to be imposed upon the lands of the owners severally that are covered by the ouster judgment.

If the municipality be abolished, the Constitution requires that "provision shall be made for the protection of its creditors." See Humphreys v. State, 108 Fla. 92, 145 So. 858.

As the lands are shown to be not now legally within the city limits, city officials may not be such representatives of the land owners as to bind them through mandamus proceedings to compel the officials, in the exercise of de facto municipal jurisdiction, to perform official duties, when the liability of the excluded lands or their owners, for the tax sought to be enforced, has not been judicially determined, it not appearing that such asserted de facto jurisdiction and consequent authority to tax is conceded by such landowners.

In City of Winter Haven v. Klemm, supra, it was said:

"If under Section 8, Article VIII, of the Constitution a statute embraces in the boundaries of a municipality land that cannot be taxed for municipal purposes without violating some provision or principle of organic law, that matter may be determined in appropriate judicial proceedings, so that `by due course of law' `right and justice shall be administered' by the `courts in this State.' Sec. 4, Decl. Rts." See City of Sarasota v. Skillin, 130 Fla. 724, 178 So. 837 (2); State v. City of Avon Park, 108 Fla. 641, 149 So. 409; State v. Town of Holly Hill,128 Fla. 385, 174 So. 818; Town of Boynton Beach v. State, 108 Fla. 92, 145 So. 858; City of Coral Gables v. State, 129 Fla. 834,177 So. 290.

It has also been held that: "A writ of mandamus will not be advertised when it is evident that substantial rights or parties not before the Court are involved." State v. Richards (H.N. 3) 50 Fla. 284, 39 So. 152.

By the addition of rural lands the municipal limits of Pompano were increased from 1,530 acres to 15,650 acres. According to the official census the population of the Town of Pompano in 1925 was 1,750; that of the City of Pompano in 1930 was 2,614; in 1935, 2,309. The ouster proceedings were begun in 1930, and the ouster judgment was ordered in 1933. State, ex rel., v. Pompano,113 Fla. 246, 151 So. 485.

While the alternative writ contains general allegations of facts showing that appreciable municipal services were rendered to the added area generally, the answer avers that there were "few houses and few inhabitants" in the very large added area. Such averment and others as made in the answer may fairly be regarded as sufficient on the record in this action to require the relators who ask for a peremptory writ to make sufficient allegations of fact to show a right of the relators and a duty of the respondent city officials to impose the tax prayed for on all the lands covered by the judgment of ouster and by the commands of the writ. Taxpayers are not parties, even if they legally can be made parties, in this action by representation or otherwise so that their rights may be adequately represented in a binding adjudication. This is particularly so when, as here, the judgment of ouster apparently makes it at least inappropriate that the city officials should be regarded as being duly authorized to represent the property owners in the ousted area in defending their rights under the de facto jurisdiction or authority of the municipality as asserted. The statute in this case was not defective in form merely, but in its provisions including the ousted area within the city limits; and the answer is largely predicated upon the contention that the judgment of ouster relieves the lands covered by the judgment from taxation by de facto as well as de jure municipal jurisdiction and authority; but this contention is not shown to be valid, though the alternative writ be insufficient as a predicate for a peremptory writ in this case.

It is not sufficiently alleged that all the land or its owners in the added area were benefitted by the lands being included in the municipality; nor is it alleged specifically that each andall of such owners have by waiver, estoppel or otherwise lost their respective rights to defend against the tax under the defacto jurisdiction or authority of the city, even if such general allegations would be sufficient in this mandamus action against the city officials, with bondholders as relators and no taxpayer a party to the action by representation or otherwise, and the organic rights of the land owners are involved.

The relators in this mandamus action do not show as against the answer that all the lands from which the prima facie de jure municipal jurisdiction of the City of Pompano had been ousted, are legally subject to the bond obligations of the de jure municipality which were incurred while in the exercise of its defacto jurisdiction over the illegally annexed lands so as to duly make this mandamus applicable to all of the improperly annexed lands. There is no legal presumption that such lands are so liable, when, as in this case, the ouster judgment was predicated upon a finding that the annexation of the immense area of rural lands to the existing relatively small municipality was an abuse and excess of legislative power rendering the annexation provision inoperative because violative of the area intendments of Section 8, Article VIII, of the Florida Constitution. Mandamus requires a clear showing of a legal right of the relator, a commensurate duty of the respondent, and the absence of another adequate remedy. State, ex rel. Ellis, Atty. Genl., v. A.C.L.R.R. Co., 53 Fla. 650, 44 So. 213, 13 L.R.A. (N.S.) 320, 12 Ann. Cas. 359; State v. Green, 88 Fla. 249,102 So. 739, 37 A.L.R. 1298. And mandamus is not appropriate when rights of other parties are not duly represented. See State v. Richards, 50 Fla. 284, 39 So. 152. If mandamus is the proper remedy on the facts shown in this case, it should be clearly shown that all the lands covered by the writ are legally subject to the tax sought to be enforced, and that the tax can be enforced without denying due process of law, upon the theory that the lands or their owners received some compensating benefits for the tax, or that the owners of the lands have waived their rights to contest the collection of the tax. And proper parties should be made.

"Taxable property" for general municipal bond payment purposes, does not include property exempted from taxation by law for governmental purposes; nor does such "taxable property" include property exempted from taxation by law for other than governmental purposes, when the exemption is in force at the time municipal bonds are issued. Lands which have been legally excluded from municipal jurisdiction cannot be taxed for municipal purposes without denying to the owners thereof due process or equal protection of the laws, when the lands have not received and cannot receive any possible benefit by having been included in the municipality. Such unbenefitted excluded lands are not subject to the de facto jurisdiction or authority of the municipality for taxation purposes against a duly asserted valid objection predicated upon the due process clause of organic law, unless the land owners by waiver or estoppel or otherwise, have lost their rights to defend. If lands over which a municipality may otherwise have de facto jurisdiction are so located and conditioned that they cannot be taxed for general bond obligations of the municipality without violating organic rights of the owners, such lands may not in law be "taxable" for payment of such bonds; and the law affords a remedy unless the owners of the lands have by waiver, estoppel or otherwise, lost their rights to a remedy. See Sec. 4, Declaration of Rights, Fla. Constitution. No question of special assessments is involved here.

In a Florida case reported as Ocean Beach Heights, Inc., v. Brown-Crummer Inv. Co., 302 U.S. 614, 58 Sup. Ct. 385,82 L. Ed. 478, there was a community of residents on the west side of a wide bay called Biscayne Bay. In establishing a town by their own action under Section 2935 (1825) et seq., C.G.L., such residents attempted, in violation of law, to include in the town limits land on the east side of the Bay which was non-contiguous to the lands incorporated by such residents on the west side of the Bay. As such residents on the west side of the Bay had no authoritywhatever to include two distinct detached tracts of land or noncontiguous lands on the east side of the Bay in the town limits, there could not have been any de jure municipal jurisdiction or authority over the lands on the east side of the Bay; and where there could have been no de jure municipal jurisdiction or authority, there can be no de facto jurisdiction or authority of the town to tax lands on the east side of the Bay to pay bonds of the town which existed only on the west side of the Bay, there having been no statute incorporating or authorizing the incorporation of the lands on the east side of the Bay into the town limits. "In the absence of a law authorizing the creation of a municipality de jure, there can be none de facto." Ocean Beach case cited above.

In this case, as in the Klemm case, the areas of rural lands were added to the city limits by a statute which was presumptively valid until otherwise duly adjudicated by quo warranto judgment, therefore there may be de facto jurisdiction and authority in this case if the required conditions are duly shown to exist. State v. City of Cedar Keys, 122 Fla. 454,165 So. 672; City of Winter Haven v. Klemm, 132 Fla. 334,181 So. 153; State v. Town of Holly Hill, 128 Fla. 385, 174 So. 818.

When municipal bonds are duly authorized by statute and no organic limitation is violated in issuing the bonds, and statements contained in the bonds authorized to be issued, are to the effect that all applicable laws or regulations were complied with in issuing the bonds, such statements in the bonds may be binding as to the validity of the bonds owned bona fide for value, unless such statements in the bonds are negatived by other provisions or statements in the bonds or in the record required by law to be made and kept of the official proceedings necessary to be had in issuing the bonds. But if municipal bonds are not duly authorized by statute, statements in the bonds that the law was complied with in issuing the bonds will not confer authority to issue the bonds, and if such bonds are not duly authorized, they would be unenforceable as bonds even in the hands of bonafide holders for value.

Judicial decrees made under the statute in validating municipal bonds do not confer authority to issue the bonds, and may not be binding as to the validity of statutory provisions incorporating a municipality or defining its territorial limits and its jurisdiction, unless perhaps such enactments may lawfully be put in issue and adjudicated in the validating proceedings. See West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361. Judicial decrees validating municipal bonds under the statute are conclusive as to the validity of the bonds adjudicated, unless there was no competent authority for issuing the bonds, or unless it is shown by the validation proceedings or by the bonds or by the record required by law to be made and kept of the proceedings had in issuing the bonds, that some provision of organic law was violated in issuing the bonds. See State, ex rel. Rodgers,125 Fla. 423, 170 So. 113; State, ex rel., v. Thomas, 125 Fla. 274,169 So. 684; A.C.L. Ry. Co. v. City of Lakeland, 130 Fla. 72,177 So. 206.

It is not shown in this case that the validating decree is not conclusive as to the validity of the bonds in controversy here. As to what constitutes res adjudicata see Stoll v. Gollick, decided by the Supreme Court of the United States November 21, 1938.

The Circuit Courts of Florida have general equity jurisdiction under Section 11, Article V of the Constitution; and, in a bond validation proceeding made equitable in its nature by the statute, Sections 5106 (3296) et seq., C.G.L., the prescribed proceedings must be substantially complied with. When the required petition has been filed and the proper court order has been made against the State of Florida requiring it through the State Attorney to show cause said bonds should not be validated and confirmed, and a copy of such petition and order have been duly served on the State Attorney, and the Clerk of the Circuit Court has duly published a notice addressed to the taxpayers and citizens of the municipality, requiring them to appear to the validating proceedings as stated in the statute, then it is provided that:

"By the publication of said notice, all taxpayers and citizens of such county, municipality, taxing district, or other political district or subdivision shall be considered as parties defendant to said proceedings, and the court shall have jurisdiction of them the same as if they were named as defendants in said petition and personally served with process." Sec. 5107 (3298) C.G.L.

And after a reasonable and fair hearing or opportunity to be heard by all parties on the issues made, has been accorded by the court, and a final decree is rendered by the court validating and confirming the issuance of municipal bonds, then

"In the event no appeal is taken within the time prescribed herein, or if taken, and the decree validating said bonds * * * is affirmed by the Supreme Court, the decree of the circuit court validating and confirming the issuance of the bonds * * * shall be forever conclusive as to the validity of said bonds * * * against the municipality * * * issuing them, and against all taxpayers and citizens thereof; and the validity of said bonds or certificates shall never be called in question in any court in this State." Sec. 5109 (3299) C.G.L.

See State v. Henderson, 130 Fla. 288, 177 So. 539; State v. City of Cedar Keys, 122 Fla. 454, 165 So. 672.

"Bonds or certificates, when issued under the provisions of this Article, shall have stamped or written thereon by the proper officers of such county, municipality, taxing district or other political district or subdivision issuing the same, the words:

`Validated and confirmed by decree of the circuit court' (specifying the date when such decree was rendered and the court in which it was rendered), which shall be signed by the clerk of the circuit court in which the decree was rendered, which entry shall be original evidence of said decree in any court in this State." Sec. 5110 (3300) C.G.L.

The purpose of the statute, Sections 5106 (3296) et seq., C.G.L., providing for judicial validations of bona fide issues ofduly authorized governmental bonds and certificates of indebtedness, is to facilitate bona fide sales of valid dulyauthorized bonds and certificates by means of authorized judicial decrees conclusively adjudicating the validity of suchduly authorized bonds and certificates as issued, unless it appears by statute or by the bonds or certificates, or by the duly required record of the validating proceedings or by the record duly required to be made and kept of the advertisement, election or other proceedings required for issuing such duly authorized bonds or certificates, that some express or implied command, prohibition or limitation of the State or FederalConstitution was violated in validating or in issuing such dulyauthorized governmental bonds or certificates of indebtedness. State, ex rel. Nuveen, v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; Weinberger v. Bd. Pub. Inst., 93 Fla. 470,112 So. 523; Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716.

Section 6, Article IX of the Florida Constitution as amended in 1930 provides that:

"The Legislature shall have power to provide for issuing State bonds only for the purpose of repelling invasion or suppressing insurrection, and the Counties, Districts or Municipalities of the State of Florida shall have power to issue bonds only after the same shall have been approved by a majority of the votes case in an election in which a majority of the freeholders who are qualified electors residing in such Counties, Districts, or Municipalities shall participate, to be held in the manner to be prescribed by law; but the provisions of this Act shall not apply to the refunding of bonds issued exclusively for the purpose of refunding of the bonds or the interest thereon of such Counties, Districts, or Municipalities."

See Advisory Opinion, 94 Fla. 967, 114 So. 850; State v. City of Miami, 100 Fla. 1388, 131 So. 143; Nolle v. Brevard County,100 Fla. 1692, 131 So. 776; Sullivan v. City of Tampa, 101 Fla. 298, 134 So. 211; Savage v. B.P.I. 101 Fla. 1362, 133 So. 341; State v. Special Tax School Dist., 107 Fla. 93, 144 So. 356; Scholtz v. McCord, 112 Fla. 248,150 So. 234; State v. Citrus County, 116 Fla. 676, 157 So. 4; Folks v. Marion County, 121 Fla. 17, 163 So. 298; Board Pub. Instr. v. State, 121 Fla. 703, 164 So. 697; Leon County v. State, 122 Fla. 505, 165 So. 666; State v. City of Pensacola, 123 Fla. 331,166 So. 851; Hopkins v. Baldwin, 123 Fla. 649, 167 So. 677; Brash v. State Tuberculosis Bd., 124 Fla. 167, 167 So. 827; and 124 Fla. 652, 169 So. 218; Kathleen C.L. Co. v. City of Lakeland, 124 Fla. 659, 169 So. 356; Williams v. Town of Dunnellon, 125 Fla. 114,169 So. 631; State v. Calhoun County, 125 Fla. 263, 169 So. 673; State v. Calhoun County, 126 Fla. 376, 170 So. 883; Broward C.P.A. v. State, 129 Fla. 73, 175 So. 796; Board Pub. Inst. v. State, 130 Fla. 366, 177 So. 615. See also Secs. 11 and 17, Art.XII Florida Constitution; State v. L'Engle, 40 Fla. 392,24 So. 539; Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716.

Chapter 13324, Acts of 1927, in effect continued the municipality of "Town of Pompano" under the name, "City of Pompano." After duly authorized bonds have been validated by judicial decree not reversed, and the bonds have been issued for value, questions as to due advertisements and other matters of procedure are foreclosed by the validating decree. Bd. Pub. Inst. v. State, ex rel. Tanger Investment Co., 121 Fla. 703,164 So. 697; Bd. Pub. Inst. v. State, ex rel. Tanger Inv. Co., 121 Fla. 176, 163 So. 694; State v. Henderson, 130 Fla. 288, 177 So. 539.

The effect of the quo warranto judgment of ouster was to adjudge an abuse of legislative power in annexing great areas of rural lands to a small municipality, not an adjudication that there were no lands in the areas covered by the ouster judgment that could under the de facto jurisdiction of the de jure City of Pompano be taxed for general bond obligations of the municipality incurred for municipal benefits to the land or its owners while the lands were by theprima facie and presumptively valid statute annexed to the municipality. And under the law such taxes may be enforced against lands that are legally "taxable;" if such enforcement does not deprive the owners of their property rights in the lands without due process of law, or otherwise violate the State and Federal Constitutions.

The relators here were not parties to the quo warranto proceedings and they now in effect claim a right in this action against the city and its officials to enforce taxation of the ousted lands along with the others now legally in the city, to pay bonds issued by the city for municipal purposes prior to the ouster judgment; and allege that municipal benefits were extended into the annexed areas. But this is a mandamus action seeking to compel as an official duty, the taxation of all the improperly annexed lands, without making a clear and sufficient showing, if it can be done in this action, that all the lands covered by the ouster judgment and the writ, are in fact and in law subject to such taxation under the de facto jurisdiction of the de jure municipality. The showing here made does not justify the issuance of a peremptory writ of mandamus commanding the city officials to tax all the lands covered by the writ to pay the municipal bonds, even though the bonds be not shown to be invalid.

The above statements are not in conflict with the decision in State v. City of Cedar Keys, 122 Fla. 454, 165 So. 672, on the record in that case, the judgment of ouster there being based on the indefiniteness of the city boundaries, no question of large areas of rural land having been improperly annexed to the city limits being there involved. The principle of law here discussed as to remedy by mandamus was not considered in any of the Lake Placid cases, or other similar cases of de facto municipal jurisdiction.

Under Section 8, Article VIII, of the Florida Constitution above quoted, the legislature has "power to establish, and to abolish, municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time." The stated legislative power includes power to prescribe the territorial area of municipalities. If the limitation intendments of the organic section above quoted are exceeded or the stated legislative power is abused in enacting a statute including within the limits of a municipality vast areas of wild lands unsuited and not needed for municipal purposes, and such areas are so included only for the purposes of municipal taxation without any present or prospective compensating benefits of any nature to the lands or to their owners, such statute, if duly enacted, will be presumptively valid until duly adjudged to be invalid in whole or in part because of the improper inclusion of such vast areas of wild lands in the municipal limits. A quo warranto judgment may oust the municipality of its prima facie and presumptively de jure jurisdiction over lands adjudged to have been illegally included in a municipality; but there may bede facto jurisdiction over the lands covered by the quo warranto judgment of ouster if the circumstances of the case authorize the application of the doctrine of de facto jurisdiction and authority. Such a de facto jurisdiction is recognized in the jurisprudence of this State. Town of Lake Placid v. West, 97 Fla. 127, 120 So. 361. See 181 So. 158; 115 Fla. 259. But it cannot operate to deprive anyone of property rights without due course of law, whether by taxation or otherwise.

When by quo warranto judgment the presumptive de jure jurisdiction and authority of a de jure municipality over lands improperly included by statute in municipal limits has been ousted, and such ouster is adjudged because of the invalidity of the enactment under Section 8, Article VIII of the Florida Constitution, and the ouster judgment does not duly adjudge that none of the lands covered by the ouster judgment can be taxed under any de facto jurisdiction and authority of the municipality, because such taxation would deprive the owners of the lands of their property rights therein without due process of law, resulting from the lack of any benefit whatever to the lands or their owners, to compensate for the tax sought to be imposed under de facto municipal jurisdiction, such question of taxation of the lands without due process of law may be adjudicated by due course of law in appropriate judicial proceedings under Section 4, Declaration of Rights, above quoted.

In order to duly subject such excluded lands to municipal taxation under the doctrine of de facto municipal jurisdiction and authority of a de jure municipality, it should be clearly shown in appropriate judicial proceedings with proper parties, that either the lands included in the municipality by a presumptively valid statute and covered by an ouster judgment and sought to be taxed under de facto municipal jurisdiction and authority, or the owners of such lands, have received or could reasonably receive some substantial benefits of governmental protection, public improvements or otherwise, by reason of having been included within the statutory limits of the municipality, or that the owners of the lands have in some lawful way lost their rights to contest such taxation under de facto municipal jurisdiction and authority. Otherwise such municipal taxation might operate to deprive the owners of the lands of their property rights therein without due process of law in violation of Sections 1 and 12, Declaration of Rights, Florida Constitution, and the Fourteenth Amendment to the Federal Constitution. Violations of such property rights may be remedied by due course of law in appropriate judicial proceedings under Section 4 of the Declaration of Rights. See Henderson v. Town of Lake Placid, 132 Fla. 190,181 So. 177.

A peremptory writ of mandamus should not be issued on this record.

BROWN and BUFORD, J.J., concur.

ON REHEARING. Division A.