67 Fla. 204 | Fla. | 1914
The City of Ocala, a municipal corporation, filed its bill in chancery against R. L. Anderson for the enforcement of a lien upon Lots 2 and 3 of Block 59 of the Old Survey of the City of Ocala, of which the defendant is alleged to be the owner, for the sum of |199.20, with interest, for the construction of sidewalks and curbing along and abutting such property, the cost thereof which had been incuiTed by the complainant. To this bill the defendant interposed a demurrer, which was overruled and from which interlocutory order the defendant has entered his appeal. We do not copy the bill and exhibit, the demurrer or the order of the court thereon, but shall refer to such portions thereof as may be necessary to render this opinion intelligible. The defendant has assigned eleven errors, but we shall not treat them in detail. As the defendant who is the appellant here, says in his brief: “It is contended
The Charter Act, the validity of which is attacked, is Chapter 4089 of the Laws of Florida, Acts of 1891, page 134, being entitled “An Act to Extend and Enlarge the Boundaries and Powers of the Municipality Known as Ocala, Marion County, Florida.” The assault is directed aainst Section 4, which reads as follows:
“The said City Council shall have power by ordinance to regulate, provide for and compel the construction and repair of sidewalks and pavements; and if the owner or owners of any lot or lots shall fail to comply with the provisions of such ordinance within such time as may be prescribed therefor, the City Council may contract for the construction and repair of such sidewalks or pavement, and the amount contracted to be paid for the same by the city shall be a lien upon such lot or lots along which said sidewalk or pavement is constructed or repaired, and such amount may be assessed as a special tax against the lot or lots adjoining which such sidewalk or pavement shall be constructed or repaired, and the same may be enforced by suit at law or in equity, or the said amount may be recovered against the said owner or owners by a suit before any court of competent jurisdiction.”
It is insisted that this quoted section of the Charter act is violative of Section 12 of the Declaration of Rights of our State Constitution, which provides, among other things, that “no person shall be deprived of life; liberty
We think that this statement of the law is correct, and it would seem to be decisive as to the validity of the authority conferred by Section 4 of the Charter act of the City of Ocala, quoted above, concerning the construction of sidewalks and the assessment of a special tax for, the cost thereof against the lot or lots adjoining which such sidewalk shall be constructed. As to the further contention of the appellant that such quoted section 4 is invalid because it fails to provide for the giving of any notice to
It will be observed that such section 4 expressly provides for the enforcement of the special tax therein provided for by an action at law or suit in equity, in which the owner would necessarily have an opportunity of being heard and of making any defense which he might have. See Garvin v. Daussman, 114 Ind. 429, 16 N. E. Rep. 826; Law v. Johnston, 118 Ind. 261, 20 N. E. Rep. 745; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation
Now we turn to the consideration of the second contention of the appellant, that the ordinance of the city, based upon such statute, under which the proceedings in question were taken, is invalid. Such ordinance is somewhat lengthy, and we see no occasion for copying it in full. Section 1 provides that the owners of lots fronting or abutting upon certain named streets and avenues are dr jL’ected and required to construct sidewalks along the property lines of certain designated widths for certain streets and of cement composition under the specifications therein set forth. Section 2 provides that the sidewalks upon the streets and avenues named in Section 1 shall be
“Sec. 4. If the owner or owners of any lot, piece or parcel of land fronting or abutting upon said streets or avenues, or the portions thereof described in section one, shall not comply therewith, or with the provisions of this ordinance, within the time prescribed thereby, that then the City Council be and it is hereby authorized and directed to advertise according to law for bids covering the construction of said sidewalks and curbs, as provided for in Section One, said bids to be sealed and filed with the Clerk of the City of Ocala, five days before-the meeting of the Council, at which all the bids for such paving are to be considered, and in accordance with specifications for such sidewalk and curb construction as shall be on file in the office of the City Clerk during the periods of such advertisement.
Section 5. That the cost of construction* of such sidewalks and curbs, together with the costs arising under this ordinance shall be chargeable to the owner or owners, and assessable against the lot or lots, pieces or parcels of land fronting and abutting upon said streets and avenues, and the portions thereof as described in Section One, as-such assessment shall constitute a lien superior in dignity to all other liens upon each of the lots, pieces or parcels: of land fronting or abutting upon said streets and avenues, and portions thereof, pro rata, according to the number of lineal feet of said lot, piece or parcel of said land thereof, fronting or abutting upon each side of said streets and avenues or portions thereof as described in Section One.
Section 7 provides that the special assessment for the construction of sidewalks and curbs shall become due and payable as fast as the same are constructed, “to be paid by the property owners of the property fronting or abutting upon the said sidewalks and curbs so constructed,” and contains a further provision to the effect that nothing in such section shall be construed to-be in conflict with Section 1035 of the General Statutes of Florida.
Section 8 provides for the issuing of special assessment City Certificates for such work “which shall constitute a lien superior in dignity to all other liens upon such lots, jueces or parcels thereof, fronting upon said streets or avenues, or portions thereof, as described in Section One. which certificates shall draw interest at the rate of eight per cent, per annum from date until paid,” and gives the requirements of such certificates, prescribes the form thereof, and provides “that such lien against such lot, piece or parcel of land shall immediately vept in the City of Ocala, and may be enforced in a like manner as mechanic’s or material man’s liens.”
Sections 9 and 10 are as follows:
“Sec. 9. That is shall be the duty of the City Clerk, within ten days after the approval of this ordinance by the Mayor of the City of Ocala, to issue a notice to each and every owner or owners of lot, lots, pieces or parcels thereof, fronting and abutting upon the streets and avenues and portions thereof described in Section One, advis
The notice provided for in this section shall be substantially in the following form, to-wit:
To .....................................................................................'
You as the owner of the following described lot fronting and abutting on .......................................... street (or avenue) in the City of Ocala, ................................................ are advised that the City Council of Ocala, has ordered that you construct sidewalks and curb, in front of and abutting your property on said street, and you are hereby required to construct or commence the construction thereof within ninety days. Said sidewalks and curbing are to be constructed in accordance with certain specifications which are on, file in the City Clerk’s office, and subject to your inspection.
........................................................................, City Clerk.
Upon which the Marshal shall make a return substantially in the following words, to-wit: Received this notice this..................day of.........................................., 19........., and served the
............................................................, City Marshal.
Sec. 10. That upon the issuance of certificate or certificates provided for in Section (8) eight of this ordinnce the City Clerk shall give a notice in writing within ten days after the issuance of said certificate, to the owner or owners of lot or lots, pieces or parcels thereof, fronting or abutting upon said streets, or avenues or portions thereof as described in Section One, of the issuance of such special assessment city certificate against his, her or their lot, lots, pieces or parcels thereof, and shall keep a record of such certificate in a book to be kept for that purpose.”
Section 11 repeals all ordinances or parts of ordinances in conflict with the provisions of Section One of such ordinance and further provides for the posting of the same “in usual manner as Charter and ordinances required.” Section 12 provides that the ordinance shall take effect immediately upon it® approval by the Mayor.
Tn many respects the ordinance is assailed as being invalid upon the same'grounds which are directed against Section i of the Charter act. We shall not repeat what we have previously said, conceiving that we have sufficiently disposed of these grounds. This particularly applies to the further contention that the ordinance contains no provision “for giving the property owner any notice or opportunity to be heard upon any matter affecting the construction of sidewalks, nor does the ordinance have any regard to the extent of any benefits to the property by reason of construction of such walks.” We would call attention to the fact that the bill of complaint alleges that the “ordinance was duly published as required by law;”
“Fourth. That the defendant failed and refused to construct said sidewalks and curbing along the lines of the above described property fronting or abutting said Magnolia Street within the time required by said ordinance; that the defendant having failed and refused to construct the said sidewalks and curb within- the required time and for á long lime thereafter, -fronting and abutting the said described property of defendant, the complainant, did, according to law advertise for bids covering the construction of said sidewalks and curb and afterwards did accept the best bid for such construction.
Fifth. That the complainant did construct or cause to be constructed the said sidewalks and curbs along the lines of the above described property of the defendant fronting and abutting a part of that portion of Magnolia Street in and by said ordinance required to be constructed for and at a total cost of one hundred and ninety-nine dollars and twenty cents, which sad amount this complaiant paid out and expended in behalf of such con
Sixth. That the construction of the sidewalks aforesaid, was completed on the 20th day of January, A. D. 1911, and a Special assessment certificate numbered ‘9’ was issued on the 7th day of March, A. D. 1911, against the aboye described property of the defendant for the said sum of one hundred ninety-nine and 20/100 with interest from date, which certificate is hereto attached and marked ‘Exhibit A;’ and that notice of the issuance of the said special assessment certificate was in writing duly and legally served on the defendant.
Seventh. That by reason of the construction of the sidewalk or sidewalks as aforesaid, the aforesaid described property of the defendant has been specially benefited; that said special assessment certificate was issued only for the purpose of paying for the construction of the sidewalks aforesaid; that the construction of the sidewalk aforesaid was done with the knowledge and acquiescense of the defendant and Avithout objection by the defendant or any one in his behalf.
Eighth. That the complainant has done all material and necessary things to be done and performed in the premises and has and is entitled to a lien against the aforesaid described property for the amount above specified for the construction of the aforesaid sideAvalks, which said amount the defendant refuses to pay to the complainant.”
The appellant further contends that the Charter act did not provide any rule or mode whatever for the making of the special assessment for sidewalks by the city, but left the matter entirely to the discretion of the City Council and that even if-the legislature had the power to adopt what is known as the “front foot rule,” which was discussed in Norwood v. Baker, supra, and other cases which we have cited, it had not done so and also that it had not delegated any such power to the city and as a matter of law could not do so. As we have already seen, the “front foot rule” is not violative of any constitutional provision and the legislature could have adopted it, had it seen fit so to do. It could have authorized and empowered the City of Ocala to so make the special assessment. As a matter of fact, the legislature did not undertake to direct the City of Ocala what mode or rule it should adopt in making such assessment, but left such municipality free to pursue such course as it might think best, so long as no principle of organic law was violated. This being true, we know of no reason why the City of Ocala was prevented or forbidden from adopting such “front foot rule.” See 4 Dillon’s Municipal Corporations (5th ed.), Section 1376, and the authorities cited in the notes. See the reasoning in Merrell v. City of St. Petersburg, 64 Fla. 367, 60 South. Rep. 349; Munn v. Finger, 66 Fla. 572, 64 South. Rep. 271; City of Jacksonville v. Bowden, decided here at the present term. In these cases, especially in City of Jack
As we have already held, Section 4 of the Charter act is not violative of any provision of organic law, and under the reasoning in the cases just cited, we are'of the opinion that the ordinance in question is not violative of the constitution, of the Charter act or of any other statute in its provisions for a special assessment for sidewalks and curbs. We would refer to White v. The People, 94 Ill., 604; Craw v. Village of Tolono, 96 Ill. 255, 36 Amer. Rep. 143; Job v. City of Alton, 189 Ill. 256, 59 N. E. Rep. 622. We fully approve of the following expression by Mr. Chief Justice Dickey in Craw v. Village of Tolono, supra: “Serious apprehensions are expressed lest, under the power to impose special taxation upon contiguous property for local improvements, cities may, in case of very expensive improvements, abuse the power, and under the form of its exercise, practically confiscate private property to public use. So long as it is confined to sidewalks, there is little cause for such apprehension. It will be time enough to consider the question when a case of oppression occurs.” We must not lose sight of the fact that the instant case is before us upon a demurrer to the bill. If it be true that “a case of oppression” has occurred in the making of the special assessment against the property of the appellant, that is defensive matter which must be set up by plea or
The appellant further contends that the ordinance is invalid because “it provides for building sidewalks on streets widely separated, and in different parts of Ocala, one improvement having absolutely no connection with one another, and there being no possible benefit to a lot in one part of the city by reason of the construction of a sidewalk in another and distinct part thereof.” What we have already said practically disposes of this contention adversely to the appellant. It may be that this point is not properly before us, since we cannot take judicial notice of the location of the different streets of the City of Ocala. We content ourselves with referring to 28 Cyc. 973, and the authorities cited in the notes. As to the additional contention of the appellant that the bill fails to allege that the amount with which it is sought to charge the property of the appellant as a special assessment “is a fair and reasonable price for the work,” in view of what we have already said, it does not merit further treatment.
We have now reached the last contention of the appeb lant, which is that the City of Ocala has failed to comply with the requirements of its own ordinance and for that reason the lien claimed cannot be enforced. We have
While we have no-t specifically referred to them, we have given all the authorities cited to us by the respective parties our careful examination and have patiently considered the different points argued. It follows from what we have said that we think that the interlocutory order appealed from should be affirmed, and it is so ordered.