McMullen v. Newmar Corp. , 100 Fla. 566 ( 1930 )

The bill of complaint contains general allegations to the effect that certain of complainants' lands are high and dry, need no drainage and derive no benefit, either direct or indirect, from the operations of the District; and that such lands were included in the District solely for the purpose of deriving revenue therefrom by the levy of special assessments thereon. No facts are pleaded, however, which show the character of complainants' lands as high lands, or upon which the conclusion could rest that such lands were not benefited, either directly or indirectly, from the drainage operations. The general allegations relating to these matters are mere conclusions.

Even if those allegations, if sustained, would entitle the complainants to have the high lands excluded from the District upon authority of Myles Salt Co. v. Iberia Drainage District,239 U.S. 478, 60 L.Ed. 392, the primary prayer of the bill is that the former decree establishing the District "be vacated and declared null and void and of no effect" and that the tax assessments levied by said District be declared to be invalid and to constitute a cloud upon complainants' title and that the entire tax record of the District, including the assessments therein contained, be declared to be invalid. Thus the bill amounts to a collateral attack upon the existence of the District, which is not permissible. See West v. Town of Lake Placid, 120 So. R. 361; State v. City of Sarasota, 92 Fla. 963, 109 So. R. 473.

Although the bill also contains an auxiliary prayer to enjoin the collection of the unpaid assessments against complainants' lands, the bill is framed upon the theory that the organization of the District is invalid in toto et ab initio. The bill can not fairly be construed as one to exclude complainants' high and dry lands from the District by enjoining the collection of assessments against those particular lands as was done in the Myles Salt Co. case, supra.

WHITFIELD, J., concurs.