Atlantic Coast Line R. R. v. City of Lakeland , 94 Fla. 347 ( 1927 )

The Constitution provides that "the Legislature shall have 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." Section 8, Article VIII.

Such provision does not authorize the Legislature to confer upon municipalities jurisdiction or powers that conflict with any other controlling provision of organic law, or that unlawfully violate or invade organic personal or property rights. Jurisdiction or powers conferred upon municipalities contemplate a lawful exercise thereof; and such jurisdiction or powers should not be so exerted or administered as to violate organic law or organic rights. The Legislature cannot legally authorize a municipality to directly or indirectly deprive a person of life, liberty or property without due process of law, nor to take private property for a public purpose without just compensation, nor to deny to any person the equal protection of the laws, nor to violate or invade the organic right of "enjoying and defending life and liberty, acquiring, possessing and protecting property." And the Constitution expressly commands 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." Secs. 1, 4 and 12, Declaration of Rights; Amendment 14, Constitution of United States. Such organic personal and property rights cannot lawfully be violated by statutory authority under the taxation, police, eminent domain or other powers, the exercise of all such powers being at all times subject to controlling provisions of organic law.

In the absence of controlling provisions of organic law, appropriate statutory regulations may provide funds for local improvements, such as constructing, repairing or improving highways or drainage operations. Such funds may be provided by general taxation, or by local taxation where the project is of peculiar local advantage, or by special assessments against property whose value or use is peculiarly enhanced by the improvement, or by a combination of different methods. See French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 Sup. Ct. Rep. 625; 102 U.S. 691; Houck v. River Drainage Dist.,239 U.S. 254, Sup. Ct. Rep. 58; Richardson v. Hardee, 85 Fla. 510, 96 So.2d Rep. 290; Bannerman v. Catts, 80 Fla. 170, 85 South. Rep. 336; Anderson v. City of Ocala, 67 Fla. 204, 64 South. Rep. 775; Walters v. City of Tampa, 88 Fla. 177, 101 South. Rep. 227; Lainhart v. Catts, 73 Fla. 735, 75 So.2d Rep. 47.

The law does not permit an arbitrary exercise of power as to the nature or extent of the improvement, or as to any special assessment or apportionment made, either as between those who are or should be specially assessed for the improvement, or as between those so assessed and the public or the taxpayers of the community who are benefited by the improvement or who should bear a portion of the burden imposed.

The amount of money which a government has power to raise by taxation to administer the affairs of the government is limited only by the necessities of the government. The amount which may be raised by special assessment for a local improvement is limited by the actual benefits which accrue to the property affected thereby. Harmon v. Bolley, 187 Ind. 511, 120 N.E. Rep. 33, 2 A. L. R. 609, text 610.

Besides this a special assessment must not be arbitrarily imposed or apportioned even if property is specially benefited by the improvement.

When the property specially assessed is benefited to the extent of the assessment authorized by legislative authority, incidental benefits to other property or to the public, do not affect the validity of the assessing enactment, since if the property specially assessed is benefited to the extent of the special assessment, it is within the legislative province to determine whether the property specially assessed and correspondingly benefited should bear any or a portion or all of the cost of the improvement, at least in the absence of a proper and sufficient showing that the special assessment imposed by the statute, or municipal ordinance under statutory authority, is, under the substantial and controlling facts of the case, an arbitrary assessment or apportionment amounting to a denial of due process or equal protection of the laws to the owners of the property that is specially assessed. Kansas City Southern R. Co. v. Road Imp. 41 Sup. Ct. Rep. 604; Thomas v. Kansas City Southern R. Co., 261 U.S. 481, 43 Sup. Ct. Rep. 440; Gast Realty Investment Co. v. Schneider Granite Co., 240 U.S. 55, 36 Sup. Ct. Rep. 400; Mylos Salt Co. v. Board of Com'rs of Iberia St. Mary Drainage Dist., 239 U.S. 478, 36 Sup. Ct. Rep. 204; Brandenburg v. D.C., 205 U.S. 135, 27 Sup. Ct. Rep. 440; Road Improvement Dist. No. 1 of Franklin County, Arkansas, v. Missouri Pac. R. Co., ___ U.S. ___, 47 Sup. Ct. Rep. 563; Browning v. Hooper, ___ U.S. ___, 46 Sup. Ct. Rep. 141. Substantial and not exact correspondence between assessments and benefits is required; and a wide latitude is allowed for legislative discretion as distinguished from a narrower field of discretion accorded to administrative or ministerial discretion in putting legislation into execution. See 73 Fla. 446; Kansas City Southern R. Co. v. Road Imp. Dist. No. 3 of Sevier County, Arkansas, 266 U.S. 379, 45 Sup. Ct. Rep. 136; Valley Farms Co. of Yonkers v. Westchester County,261 U.S. 182) 40 Sup. Ct. Rep. 113; Embree v. Kansas City Liberty Boulevard Road Dist., 240 U.S. 242, 36 Sup. Ct. Rep. 317; Risty v. Chicago, R.I. P. Ry. Co., ___ U.S. ___, 46 Sup. Ct. Rep. 236, text 239.

An unlawful exercise of the law making power, by a violation of specific organic limitations upon legislative action or by an invasion of individual or property rights secured by the constitution, if fundamental (Weinberger v. Board, 93 Fla. 470,112 So. 253), and may invalidate any legislation, whether in whole (Paul Bros. v. Long Branch and Lakeside Special Road and Bridge Dist., 83 Fla. 706, 92 So.2d Rep. 687), or in part (Consolidated Land Co. v. Tyler, 88 Fla. 14, 101 So.2d Rep. 280), that conflicts with applicable organic law. Where an enactment is valid, but its enforcement is in a manner that violates organic law or organic rights, A. C. L. v. Gainesville, 83 Fla. 275, 81 So. 118; Willis v. Special Road Bridge Dist. No. 2, Osceola County, 73 Fla. 446, 74 So.2d Rep. 495, such enforcement, if duly found to be unlawful, may be enjoined or remedied by due course of judicial procedure without affecting the validity of the enactment or its proper enforcement. Chapter 9298, Acts of 1923, was held valid as against the attack made upon it in 88 Fla. 177, 101 So.2d 227. The opinion in that case states that there was no showing that the special assessment was in excess of the benefits to accrue to the abutting property or that the special assessment was arbitrary or unjust or inequitable.

In view of the allegations of fact admitted by the demurrer relative to the location, nature and purpose of the street, to the absence of benefits to the complainant's property and to the amount and apportionment of the special assessments as made, the general demurrer to the bill of complaint should have been overruled. These views do not conflict with Anderson v. City of Ocala, 67 Fla. 204, 64 So. 775.

STRUM, J., concurs.

ON PETITION FOR REHEARING. En Banc. 1. Where a petition for a rehearing of a cause in this Court does not set forth as overlooked or not considered by this Court any fact or point involved in the litigation and which was determined by the decision the petition should be denied.

2. A rehearing is authorized only by rule of court and a petition for a rehearing must set forth concisely the particular omission or cause for which the judgment is supposed to be erroneous. The petition is not part of the record unless it is ordered to be made a part of it, or unless the rehearing is granted.

3. A petition for a rehearing which amounts to practically a joinder of issue with the court as to the correctness of its conclusions upon points in its decision which were considered and passed upon and which merely reargues a cause in advance of a permit from the court for such argument is violative of the rule and should be denied without further consideration. Jones v. Fox, 23 Fla. 462, 2 So.2d Rep. 853; Hull v. Burr, 58 Fla. 475, 50 South. Rep. 754; Malsby v. Gamble, 61 Fla. 327, 54 So.2d Rep. 766; Stewart v. Preston, 80 Fla. 479, 86 So.2d Rep. 348; Payne v. Ivey, 83 Fla. 436, 93 So.2d Rep. 143.

4. It is the judgment of the Court, not its opinion or decision which may be attacked by a petition for a rehearing. It may not be used as a means for obtaining an explanation of the Court's language used in its opinion, nor can a difference of opinion between counsel and the court on the decision ever be the lawful basis for an application for a rehearing.

5. When a petition for a rehearing contains no ground for a reconsideration of the case but merely points out some phrase of sentence contained in the court's opinion which is sought to be clarified or explained the petition affords no ground for any action by the court save to deny or dismiss it.

6. A petition for a rehearing which sets up no fact or point overlooked by the court in its consideration of a cause which would affect the court's judgment cannot be made to serve as the basis for an opinion changing the rules of law announced by the court in its original opinion as controlling its judgment.

7. Principles and rules of law decided in an appellate court's opinion as pertinent to and controlling of its judgment in the cause are not subject to review and repudiation on petition for a rehearing which must point out some fact or point overlooked by the court which if it had considered would have made a different judgment necessary.

8. A petition for a rehearing is an ex parte application permitted by rule of court. It is: not new litigation where all parties may be heard and the same questions considered again which may result in the modification of the rule announced in another case. It is a means afforded by rule for attacking the judgment rendered because of a fact or point not considered by the court which if it had done the judgment would not have been rendered.

Rehearing denied.

Kelly Shaw, for Appellant;

Peterson Carver, for Appellee.

ON PETITION FOR REHEARING. 1. Pursuant to appropriate and competent action by the legislative authority, the entire reasonable and proper cost of a local street improvement may be imposed upon the property specially or peculiarly benefited thereby, provided no constitutional principle is violated in the application or utilization of such a plan and there is no palpable abuse of legislative power. There is nothing inherent in the plan itself which violates constitutional inhibitions.

2. Special assessments proceed upon the theory that when a local improvement confers upon neighboring property a special or peculiar benefit differing materially and substantially from the benefits flowing to the public generally, it is competent for the Legislature to require the property so benefited to pay, either wholly or in part, the cost of such improvement by proportionate contribution to the cost thereof, so long as the special assessment does not substantially exceed the special or peculiar benefits to the property so assessed.

3. Where the legislative authority has acted within the limits of its power and the mandates of the Constitution have been duly observed in the exercise of the power, the judiciary possesses no general authority to review and correct apparent injustices of legislative action in matters of taxation unless the exaction is the result of a palpable abuse of legislative power, or there has been a substantially unjust discrimination or other substantial error in executing that power.

4. If the benefits which are peculiar and special to the property specially assessed for the entire cost of a local improvement pursuant to Chap. 9298, Laws of 1923, are substantially proportionate and equal to the charge against such property, the tax is not rendered invalid merely because some further or additional benefit may incidentally or secondarily inure to the public from the improvement.

5. Whether the entire amount or a part only of the cost of a local street improvement shall be imposed as a special tax upon the property specially benefited are matters of legislative discretion, but subject to judicial relief in cases of palpable abuse of power or of substantial error in executing it.

6. The plan of apportionment authorized by Chap. 9298, Laws of 1923, by which the entire reasonable and proper cost of a local street improvement is assessed against the property specially benefited is, within itself, a valid exercise of the legislative power so long as the special and peculiar benefits inuring to the property which bears the burden are substantially proportionate and equal to the charge laid against such property to pay for the improvement, and provided that the utilization and execution of the plan the essential requirements of the Constitution, and also of the statutes, since the power is executed through a subordinate board, are duly observed and no abuse of power is shown.

An Appeal from the Circuit Court for Polk County; Hon. H. C. Petteway, Judge.

Rehearing denied.

W. E. Kay and Kelly Shaw, for Appellant;

Peterson Carver, for Appellee.

ON PETITION FOR REHEARING.