Webb v. Hillsborough County , 128 Fla. 471 ( 1935 )

On Petition for Rehearing, we have reviewed all the questions discussed by petitioner including those adjudicated in the main opinion but find no reason to recede from or modify the judgment theretofore rendered. What is said here will be in exposition and enlargement of that judgment.

We did not so state in the order granting the rehearing but the main object we had in mind was to consider the question of whether or not if a judgment should be secured against the defendant, it should be general against the county or provisional against a designated area or district and limited in payment to some particular county or district fund.

In the main opinion we held in effect that if Plaintiffs in Error stated in their declaration and proved that they in good faith made a contract with and expended their labor and material on a public project that the county was fully authorized to construct and pay for and which it is now actually in possession of and enjoying, they should be permitted to recover. This view is supported by Harwell v. Hillsborough County, 111 Fla. 361,149 So. 547, and other cases cited in the main opinion.

It is shown that the County was authorized to make the contract and it is not shown that it was contrary to public policy, law or morals. When this is the case and the County has by performance of the contract on the part of Plaintiffs in Error, obtained their property, the law independent of statute, will require restitution or compensation. Equity in other words will restore the parties to status quo.

It is settled law in this country, sustained by a wealth of authority, that where a county has the power to and enters into contract for the labor or goods of another and the contract is not prohibited by law or public morals, the county will not be permitted to retain the goods and deny liability on the contract even though the method of payment fails. If it attempts to avoid the contract on the ground that it is ultra vires, it must make restitution or render an equivalent therefor. This rule is grounded on the theory that the obligation to do justice rests on all persons whether natural or artificial. Chapmen v. Douglas County Commissioners, 107 U.S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Fairbanks Morse and Co. v. City of Wagoner, 86 F.2d 288.

Having approved this rule and being of the opinion that the case at bar falls within it, we proceed to discuss the question of whether or not any judgment secured herein should be a general one against the county or should it be provisional limited to a particular area or a definite and restricted county fund.

A majority of the Court have reached the conclusion that since Chapter 9316, Acts of 1923, under which the contract was entered into, the paving done, and the certificates executed, gave a lien against the abutting property to secure the payment of the certificates, that the said Act to all intents and purposes created a de facto district which, with the county, is liable on a quantum meruit basis for the payment of said certificates but in such proportions as the chancellor may see fit to adjudicate under the facts shown to exist and in the manner determined in Nuveen v. Board of Public Instruction of Gadsden County, decided February 16, 1937, reported in 88 Fed. Rep. 2d 175, and Board of Public Instruction of Polk County v. Gillespie, 81 Fed. Rep. 2d 586; Moor v. Spanish River Land Co., 118 Fla. 549,159 So. 673; Burnett, et al., v. Green and Meir, 105 Fla. 35,144 So. 205.

In adjudicating the division of the burden between the county and the abutting owner, many elements are often present, one of which is proximity to the paved highway. This undoubtedly has its advantages but it has no such significance as that fact connoted when the front foot rule for assessing the cost of paving was first approved. At that time, only property of exceptional value for business or other purposes would bear the expense of paving but with the advent of the automobile, thousands of miles of paved highways have been constructed at public expense for public convenience making the public generally much more interested than formerly. As now viewed, proximity to a paved highway may or may not enhance values.

The fact of paving main thoroughfares in rural community is primarily for the convenience of the public in traveling from point to point while enhancement in value is secondary and being so, the court should take these facts into consideration in apportioning the cost between the county and the adjacent owner. Perhaps the main consideration that should actuate the court in apportioning the cost is the extent to which the highway serves a public or a private purpose.

As to what is comprehended by the rule of quantum meruit, it is sufficient to say that we are not unmindful of the decisions which hold that at the common law, no statute interevening, a county cannot be required to make restitution even though it acquires the fruits of an invalid contract. Hart v. City of New York, 201 N.Y. 45, 55, 94 N.E. 219, but as already pointed out, such is not the rule in this State.

Quantum meruit is not a legal concept inducted from a vacuum but it arises from all the facts that compose the matrix in which it is found. When so applied, the value of the work done and materials furnished is not necessarily limited to manual labor and wood, sand, iron, and physical materials furnished but may comprehend the cost of engineering, superintending, or any necessary expense that goes into and becomes a part of modern highway construction.

As heretofore stated, this opinion was cast to meet the majority view of the Court. As the writer, I do not agree to that part of the opinion apportioning the cost between the abutting owner and the county. I think the county commissioners were representing the county when the contract was made and that when Chapter 9316, Acts of 1923, was declared invalid, it vanished from the picture and such right as the Plaintiffs in Error had, grew out of equity and the law as expressed in Section 2436, etseq. Compiled General Laws of 1927, which treats nothing but an obligation against the county. Restoration to status quo on aquantum meruit basis implies that the county has goods of the Plaintiff in Error that it has not paid for and that it in law and morals should restore or compensate for. Such being the case, the Plaintiff is entitled to a judgment on which he can recover. It is shown that the road in question was constructed and paved through rural country. A judgment against the abutting property under the circumstances would in many instances be nothing more than a nudum pactum. This view is concurred in by Mr. Justice BUFORD.

It follows that our judgment of reversal must be and is hereby reaffirmed on rehearing.

ELLIS, C.J., and BUFORD and CHAPMAN, J.J., concur.

BROWN, J., dissents.