Morris v. City of Gainesville , 60 Fla. 338 ( 1910 )

Whitfield, C. J.

This appeal is from a decree declaring a lien upon real estate in favor of the city for sidewalk and street improvements adjacent to the property in the city of Gainesville. The amount of the decree is $576.58 and $200.00 attorney fees.

On a demurrer to the bill of complaint, it is argued that as the statute authorizes and the bill alleges the construction of and indebtedness for a' sidewalk “per front foot,” and the statement of the indebtedness attached to the bill as a part thereof is for “square feet of sidewalk” and “square yards of roadwork,” the bill is without equity.

The attached statement shows “179 feet frontage” of the property and also gives the square feet of sidewalk and square yard of roadwork required and completed. There is in this no variance and no want of equity.

The contention that the statute Chapter 5497 Acts of 1905 authorizing the improvements and the lien therefor is unconstitutional because it was not passed by the senate as required by the constitution cannot be sustained. It appears from the senate journal of 1905 that senate bill No. 108, being the act here considered as shown by the title stated in the journal, “was taken up out of its order,” “by a two-thirds vote,” “read the third time in Ml and put upon its passage.” Then follows this entry: “Upon call of the roll on senate bill No. 41 the vote was:” giving the names “yeas 24. Nays none. So the bill passed title as stated.” Immediately following this, the journal shows that senate bill No. 41, a wholly different bill, the title thereto being given in full, was taken up, read in full and passed by a different vote. These entries taken together as they appear, clearly show that the number 41 given to the bill first mentioned herein was merely a clerical error. The bill actually voted on and passed was No. 108, which bill is the statute here considered.

The number of a bill pending in the legislature is no part of the ¿ct but is a method of convenient handling of bills in legislative procedure.

Thát the' city of Gainesville is a municipal corporation in this State sufficiently appears.

The answer denies the alleged passage of the resolution fixing the indebtedness within thirty days after the completion of the Avork as required by the ordinance, and also denies the allegation that the Avork was done in the manner and according to the specifications and requirements of the ordinance, and avers that the work was incomplete, inadequate and a waste of money, and not within the requirements of the ordinance and the contract. A replication put these matters in' issue.

There is testimony that because of defects agreed to be repaired, the Avork was not regarded as in fact completed till it .was accepted January 17, 1907. The resolution fixing the indebtedness Avas adopted February 12, 1907. Under these circumstances, it cannot be said the resolution fixing the indebtedness for the work was not adopted “within thirty days after the construction and completion” of the work as required by the ordinance under which the work was done.

There is testimony that the paving Avas done “pursuant to the requirements of the ordinance,” and also testimony that the work was defectively done. The averment of the answer that the work was incomplete, inadequate and a waste of money is not established by the evidence.

Where there is a substantial compliance Avith lawful requirements in the construction of sidewalks and street improvements by a municipality and it is not máde to appear that the improvements as made are unsuited to the purposes designed, or that such improvements are of no practical value, a lien under the statute on the adjacent property for such improvements may be enforced for the real value thereof under a laAvful contract. See Theison v. Whiddon, decided at this term.

There is evidence from which the court- could have fairly found a substantial compliance with lawful requirements in making the improvements and such finding will not be disturbed here, no abuse of discretion being shown.

The allowance of $200.00 attorney fees in this case to enforce a lien for $576.58 is unreasonable for services in the trial court; but the defendants appealed and the city had to employ counsel in this court, and this may have influenced the court in fixing fee, therefore the amount allowed will not be disturbed.

The decree is affirmed.

Shackleford and Cockrell, J. J., concur. Taylor, Hocker and Parkhill, J. J., concur in the opinion.