Campbell v. Daniel

68 Fla. 282 | Fla. | 1914

Cockrell, J.,

(After stating the facts) — The true construction of the bill of complaint, as we read it, is an effort to enforce the lien given by the statute to the City of Pensacola, against an abutting owner for a special benefit to his property, by reason of the construction of a sidewalk. The plea admits that the proportionate cost of the paving to he assessed against his property was duly fixed by the proper city authorities and that the city had performed the work through an agency at the lowest cost after competitive bidding.

The plea does not question the value of the improvement to the property, nor the sufficiency of the notice to the defendant, nor does it assert any irregularity in the proceedings that could in anywise prevent the City oí Pensacola from itself enforcing the lien for the amount claimed. The city had the power to do the work through any agency it saw fit, limited only to a reasonable cost for the work, after proper notice. It saw fit to perform the work through a foreign corporation, and we may admit that it could have avoided the contract as against the Foreign Corporation, had it seen fit so to do, or even further it might perhaps have used this statute to compel specific performance of the contract had the Foreign Corporation declined performance; but the city so far from raising-objection, has ratified and approved the contract, which has been fully performed to the entire satisfaction of the city as shown by its issuance of the apportionment warrant. All this is then past history.

The statute does not forbid the municipality or any citizen of the State entering into a contract with a non-register ed foreign corporation; to the contrary, the statute in terms permits the enforcement of the contract on its behalf. We are not then' asked to assist the city in the evasion of a police or other regulation of the Legislature. The city has had the work done in the least expensive way it could be done,’ after the abutting owner had failed to do the work, and without the violation of any law. It thus acquired a lien against the property for the fair cost of this improvement, the city could have enforced this lien against Campbell, and there is no doubt that having a valid lien, the city could have assigned the lien directly to Lee Daniell.

The plea then presents the question of the proper party complainant; that the city is the proper complainant and not Lee Daniell. In framing the plea the pleader did not have in mind this narrowed defense, else he would have asserted in more positive terms that the foreign corporation had not obtained the permit to do business in Florida when the apportionment warrant was issued to and assigned by it, assuming that this transaction would offend the statute. The plea denies that the permit had been granted “during the years 1910 and 1911, when the said contract was to be performed.” This plea is addressed to a bill that alleges that the contract was fully performed August 1, 1911,. while the warrant was not issued until December 18, 1911. The plea does not aver that the foreign corporation “had not then (that is on December 18, 1911), received from the Secretary of State a permit to transact business in this State.” We are not therefore called upon to express an opinion as to whether the receipt of the apportionment warrant, and its assignment offended the statute. The plea was therefore properly overruled and the order is affirmed.

Taylor and Hocker, J. J., concur; Shackleford, C. J., and Whitfield, J., dissent.