Higbee v. Housing Authority of JacksonvilleHigbee v. Housing Authority of Jacksonville
*1 560 Harrison, Appellant;
Carey & Kiernan, Askew for Appellee. & Per Curiam. This is the second this appearance of case here. See v. of St. Fla. Harvey Petersburg, 597, 189 861. So. appeal that case was from order. interlocutory
This final appeal is from decree.
The law of the case is found opinion' stated and no useful judgment, supra, purpose be served what was said repeating there.
The decree is affirmed.
So ordered.
Affirmed. J.,C. and Buford concur. J.,
Terrell, Thomas, J. P. J., opinion' concurs and judgment. AVi-iitfield, Chapman as au- participating Justices Brown thorized by Compiled Section General Laws of and Rule 21-A the Rules this Court. al., et Higbee, H. v.
J. et al.
The bill of consists of some twen'ty-five 17981 and graphs constitutionality Chapter raising Florida, prayer Laws of Acts of 1937. of the bill order or decree the aforesaid holding seeks an unconstitutional, and, further, Acts void that a restrain- for injunction grounds order or a number of ing reasons Authority be issued the United States against Housing restrain- Authority City Housing further the reasons each of them from ing proceeding complaint. set bill of forth the bill of Attached to the appropriate allegations part made a complaint, thereof, a loan between Housing is contract copy and the United States Authority “A.” copy Exhibit Also a identified as between the Co-Operative Agreement Jackson- attached ville and the Housing of annual copy identified as Exhibit “B.” Likewise an'd *4 of between Housing contributions contracts the Florida, Au- and the States Housing United Jacksonville, “C;” map a identified Exhibit is attached and as thority the within City located plat of the involved an'd area “D.” Exhibit is as of identified Jacksonville Housing On October Jackson- filed an answer thereof named Commissioners ville and the thereof contains complaint, paragraph to the bill of viz.: pertinent allegations, complaint said bill of and each and answering
“Further thereof, these defendants aver that every allegation numbered thereof (1) property in'paragraph described One in ‘Hansontown’ and is is known commonly Jacksonville slum clearance de- project the site of the proposed (Florida), fendant Authority of matter of this corporation, project subject which is the suit, that said lies within property these defendants aver X, shown attendance district as the same is colored school in Social report Agencies Council Jackson- ville, Florida; that in said Bill of Com- said described area said population; is inhabited that by negro plaint 100% has a con- school lies within an area which greater district than' other per any block population city centration of portion proposed and that the Jacksonville, property acquired project for this slum has greatest clearance area; concentration of block population per city said district X de- that said of said school and said inhabitants fall highest within the property having scribed group particularly death rate within the City in infant stage, has it the number of deaths greatest diseases; numerically tuberculosis that pellagra, and venereal number of commitments for insanity speaking greatest district; that district are issued for of said said inhabitants percentage within the group having greatest falls relief; numbers of upon direct dependency greater district juvenile delinquents apprehended are out of said than furnish the other; that any said district’s inhabitants capita per criminal cases municipal court with more adult in’ than other district disposition any four times education, standpoint play- that from the Jacksonville; popula- in the lowest and recreation said district grounds tion bracket percentage Jacksonville. at further allege defendants
“These Loftin, then Presi- M. Honorable Scott suggestion Association, dent of the American Bar the *5 appointed Commission' a Crime Commission of Justice members, fifty-five judges, lawyers, including ministers professional business men and women of the City of Jacksonville, purpose for the conditions investigating in in relation to crime. Two years later they report sent their with stating, reference to the district located, in which said project is other among things: “ 'The area this bad in housing uniformly spots. In portion area, one. this Hansontown, called net municipal cost of services exceeds the net income from $40,000.00 taxation per This year. is a net to the loss as whole.’ taxpayers a
“These defendants said allege finding by said Crime- time, Commission is true in present fact as of the Justice and that said section called wiped Hansontown1will be out their slum clearance project. recommended, “Said Commission among Crime-Justice other things:
“ ‘That City Planning requested to create Board permanent sub-committees those districts needed where to devise and means for ways particular slum clearance with reference better ultimate elimination of housing those places which are commonly crime recognized breeding.’
“These defendants aver that subsequent to the filing report said Legislature State of the State of Florida passed Laws of Florida under which defendant, Authority, (Flor- created, ida), corporation, a was said Defendant proposes now to eliminate these slums from this area of the Florida, and to replace them with a project low-rent housing thereby effecting to the saving *6 566 and crime the disease and reducing said
taxpaj'ers City of City.” in said and the named of Authority, to dis- several motion and joint thereof filed
commissions and one of 26 complaint grounds, on some the of mis bill failed to complaint of that the bill to the effect them was 1939, 2, the October relief. On equitable state for grounds the of dismiss bill a motion to filed of City the was one thereof grounds on nine complaint relief equitable ground no stated complaint of bill of against City Jacksonville. McNeill, A. D. 8, 1939, the Honorable November
On entered an order made and Judge, granting Circuit dismiss, his motions to ruling two sustaining of order was bottomed on the case Marvin as stated his of 133 Fla. Jacksonville, Admr. v. Housing Authority Lott v. unreported and an case of 183 So. Orlando, 196 313. Fla. So. November plaintiffs
On below an- having nounced that would stand their complaint bill of they same, or declined amend the and refused to an order was same, made and entered order dismissing said appeal dismissal an has been to perfected this Court. It that the case Marvin is first contended v. Housing Jacksonville, Fla. 183 So. cited dismissal of the lower the order of court is not binding Court, no (a) justiciable because: question on this was pleading; (b) entry appeal presented by face; this Court was (c) its without herein was void on decree; (d) enter the order for other jurisdiction judgment said was void. irregularities procedural the case decide Court of this The jurisdiction supra, on v. Housing Marvin appeal from the Circuit Florida, Court Duval County, authorized Section 5 of Article Constitution of Florida, which provides that Supreme Court of Florida shall have appellate jurisdiction all cases at and in law in the equity originating circuit courts and of appeals from *7 the circuit in certain courts question enumerated cases. The as to appeal the therein void and no being justiciable question presented the being was in Marvin v. by decided pleading Jacksonville, supra, of Housing Authority adversely to the contention of counsel.
It is well
points
established law that all
adjudicated by
an appellate
upon
court
appeal or writ of
error become
law
of
case and are no longer open to discussion or
154,
consideration. See
Tyler,
Rudisill
125
169
v.
Fla.
So.
614;
Loan Co. v.
Corporation, 123 Fla.
Family
Smetal
48;
169 So.
v.
The
Utley
Petersburg.
of St.
law of
the case is the question of
decided on
courts
appeal
law
to
of
ultimate resort
and must
the same courts and
govern
trial courts and will
reversed.
seldom be reconsidered or
Co.,
See
v. Provident
162
McGregor
Trust
Fla.
So.
323;
Lillenback,
Lincoln Fire Ins.
v.
130 Fla.
Co.
Chapters
supra,
presented
and not
considered or determined
Court in
this
Marvin v.
by
Hous-
ing
Jacksonville,
of
supra.,
Authority
be considered
determined
this Court in a
subsequent suit. See Phifer
488;
Abbott,
v.
Fla.
Wilder
Gorda
So.
v. Punta
Bank,
State
100 Fla.
It is next contended that the loan agreement between the Housing Authority and the United States Jacksonville Housing Authority estimates cost of the proposed project $3,067,000.00 at and the United States Housing no $2,510,000.00 there is
contracts and loan agrees to had, if the assurance that loan can an additional had, of financing- additional loan then the method cannot be will resorted Housing Author- that the alleged be to sell its It is bonds. arrangements provision made no ity has property that it has no to raise the (possible) shortage; loan; as the present plan offer security financing that United makes tem- is States Housing Authority loans to the porary Housing Authority that this in defiance and means is of law proceeding law. The expenditure public funds without authority appellants to cite support brief fails authorities to are public expended contrary allegations moneys being charged to law. with presumption is a officers Ther.e their duties fully discharge administration will law Section 21 the law The answer to charge directs. this of Chapter supra, viz.: *8 21. “Section Government. —In ad- Aid from Federal to the powers upon dition conferred an authority by other Act, of is provisions this an to authority empowered borrow or accept other financial or assistance money grants from Government for aid any project Federal or of housing within area take operation, its of over lease or manage to or or owned or any housing project undertaking constructed Government, ends, comply the Federal and to to by these indentures, enter trust with such conditions and into such agreements leases or be. convenient necessary, It Act to desirable. is the intent of this purpose necessary and all things authorize to do every any authority of the co-operation to the financial aid or desirable secure of construction, main- Federal Government in undertaking, au- operation tenance or such housing project of any ' thority.” It Au- is next contended that the United Housing States of should and the thority Housing Authority Jacksonville rental enjoined prop- of low-cost construction being have and are now because similar been erty dwellings less enterprise a sum private substantially constructed at the Housing than cost of construction under A., provides 42 U. S. C. (5), of Section Jacksonville. loans shall make that the United States Housing con- as it are to be undertaken projects only finds than the per greater at cost unit average structed an enterprise. private under per construction cost unit average cent per advances States Housing Authority United Au- Housing the construction of the estimated cost of adverse ruling There nowas thority Jacksonville. States the United entered against lower court Authority. between the
It next contended that the agreement is and the City Housing Authority Jackson- elimination out or observed about ville not be carried will that the City It is buildings. urged of unsafe unsanitary this provision have the with power comply does not steps formulated or plans have been no agreement out this carry contemplated by this province It not the provision agreement. not do or will an officer will on what speculate Court to presump- there is a but duty, administrative his concerning his discharge the law with that he tion will comply official duties. contra supra, next contended It is III, Article Section with in conflict and is
venes *9 3, 1936, which November adopted of Florida Constitution is, viz.: shall counties the State respective of
“Section 3. law, those for prescribed in the manner provide misfortune, infirmity, who reason of age, inhabitants society: aid sympathy have claims and upon >’ * ** Florida, The Legislature in enacting Florida, Laws Acts and legislative findings made necessity, declarations of viz.: 2. “Section Finding Necessity.— and Declaration It is declared: hereby “ That (a) there in the exists State insanitary or unsafe accommodations and dwelling persons that lowof income are forced to reside in such insanitary unsafe accommo- ; that dations within the State there is shortage of safe or sanitary accommodations dwelling available at rents which persons of low income can afford and that such persons are forced to overcrowded occupy and congested ac- dwelling commodations; that the aforesaid conditions cause an in- crease the spread of disease and crime and constitute a health, menace to the morals safety, and welfare of the residents the State impair values; and economic that these conditions necessitate excessive disproportionate expenditures public funds for crime prevention and punishment, public health, welfare and safety, fire and protection, facilities; accident public other services and (b) slum areas in the State cannot be cleared nor can shortage of safe for sanitary dwellings persons of relieved, income be low the operation of through private enterprise, that the construction of projects for housing herein persons low (as defined) income would therefore competitive enterprise; with private (c) clearance, and reconstruction the areas in replanning which or unsafe conditions exist and unsanitary housing of safe and providing accommodations sanitary dwelling income of low persons (including acquisition aby
571 for or in con- used to be of property housing authority are thereto) appurtenant projects with housing nection money public for which purposes and uses public exclusively are and govern- acquired spent private property be and may concern; that it in the is (d) public mental functions of be purposes for such interest work on projects public unemploy- relieve possible as as in order to commenced soon the necessity an and emergency; constitutes ment which now enacted, hereinafter the provisions in the interest for public determination.” matter of legislative declared as a is hereby flowing the benefits It contended all is strenuously tc the inhabitants 17981 who go exclusively have claims reason of misfortune age, infirmity contemplated by the aid as and upon sympathy society XIII as 3 of Article Constitution Florida Section such class or classes are adopted November Act, benefactors then the burden on the sole rests Florida and respective counties of under Constitution Act and with therefore is contravention of conflicts Lakeland, and Brown the Constitution and is null void. v. 716; Reeves, 61 54 Munroe 71 Fla. Fla. So. v. 922; Greer, v. So. are So. Fla. State that municipal cited as funds cannot holding authority aid used to schools. We public agree be constitutionally all that in each is said cited authorities. fully .legislative ap- and declaration of findings necessity The Act Section 2 af- contemplate conditions pearing health, morals, crime, safety, interest and fecting public welfare interest of general appearing slum society unhealthy, if these unsani- places immoral tary, of crime disease are breeding eradicated, be the slum must removed. While courts, is conclusive on the it legislative very finding broader, to be Act are ends obtained persuasive. *11 deeper comprehensive and more than for the class providing or classes enumerated in 3 Article XIII of the Section Constitution. While it true the classes is enumerated XIII, supra, recipients Section 3 Article the become Act, of benefits the it cannot be said that the from flowing It general also benefited. is a welfare public general Act, on the the Constitu- police power of resting primarily tion, for slum and the construction providing the clearing houses, of low cost places for thereby removing breeding disease, health, morals, crime and and promoting safety, peace and welfare general people.
In the Corp. Holyoke case of v. Housing Allydonn Realty 665, 23 N. E. Authority (Mass.), (2d) Supreme Judicial Court of Massachusetts had it a statute before similar to the involved, one here Act numer- sustaining against ous on otherwise, attacks constitutional grounds and Court said: primary purpose that established
“As soon as it is for provisions the various public purpose, the statute is a site, authorities, co- selection of of housing the creation eminent municipalities, right exercise of operation by taxation take their domain, appropriate exemption v. See Graves the entire legitimate parts plan. as places O’Keefe, 306 U. S. New York ex rel. People of State of 1466.” 477, Ed., 927, 120 A. L. R. 59 Ct. 83 L. S. 186 Ga. Augusta, Sec Williamson v. Housing Authority 47; Au- Philadelphia Housing 199 Dorman v. S. E. 840; Rutherford 331 200 Atl. v. thority, Pa. 656; Falls, Spahn 108 Mont. 86 Pac. v. (2d) Great 651; Stewart, 268 103 S. W. Au- (2d) Ky. Dockweiler, 14 thority Angeles (2d) of Los v. Cal. Pac. 794. (2d) that Chapter 17981 contravenes and It is next contended with conflict Section of Article VIII and is in Section of Article III of the Constitution of Florida. the Legislature provides 8 of Article. VIII
Section abolish, establish, municipalities, and to have to power shall juris- their prescribe to their provide government, to at same alter and amend diction and powers III provides Article '25 of time. Section any for incorporating law general provide shall Legislature mechanical, trans- educational, mining, such agricultural, companies may other useful portation, mercantile on special law it shall not pass any but necessary, deemed no law shall be of special such subject, and any such any effect. *12 that to show a number of authorities
Counsel has cited exam We have carefully law. special 17981 is a are they are not satisfied authorities and ined these examined cases other have We controlling. carefully upon and have been passed where similar Acts jurisdictions appellant, where the questions propounded by many the different have been considered questions, additional full, complete We think or sustained. upheld Acts raised on question can be found every answers logical cases, Marvin Housing viz.: v. this in the appeal following 590, 145; Lott Fla. 183 So. 133 Authority 338, 313; In Re: Orlando, 196 So. 142 Fla. v. City 485, 535; 179 William 235 Ala. So. Opinion Justices, 673, 186 Ga. 199 Augusta, son v. Housing Authority 356, 43; 370 Ill. v. Peoria Housing Authority, S. E. Krause 193; City E. Edwards v. (2d) Housing Authority 19 N. 741; ex rel. 19 E. State Supp.), (2d) of Muncie N. (Ind. Orleans, La. of New 190 Porterie v. Housing Authority 725; Hous 710, Corp. Holyoke v. 182 So. Allydonn Realty 665; v. 23 N. E. (2d) Stokus Authority (Mass.), ing 333; In Re: Brewster Street Breen 24 N. E. (2d) (Mass.), 289 N. W. (Mich.), (2d) Detroit Site Housing City 493; Dickman 134 W. (Mo.), v. S. Laret Investment Co.
574 65;
(2d) Falls, v. Rutherford of Great 107 Mont. City 656; 86 Pac. (2d) State ex rel. Authority Helena Housing 514; v. of Helena 90 City (Mont.), (2d) Pac. Romano v. 191; Newark Housing 10 Atl. Authority (N. J.), (2d) New York Muller, v. 270 Y. Housing Authority N. 1 N. 905; E. 105 (2d) A. L. R. Wells v. Au- Housing thority 693; 213 N. Wilmington, C. 197 E. S. Doman Philadelphia v. Housing Authority, 331 Pa. 834; Owens, 200 Atl. v. McNulty S. C. 199 E.S. 425; Knoxville Housing v. of Knoxville 1085; (Tenn.), 123 S. W. (2d) Chapman v. Huntington, Va.,W. 502; (W. Va.), 3 S. E. (2d) Stewart, v. Spahn Ky. S. W. (2d) 651. In the brief filed counsel as amici by curiae certain questions presented, are viz.:
‘T. The ‘Housing Authorities Law’ passed by Legis- lature as ‘Committee Substitute 1127,’ for House Bill No. does not appear the House have been signed Journals Speaker and Clerk of the in open House session but on the contrary recorded the specifically signing Journals of House No. Bill for which the Committee Substitute has been substituted.”
“2. The ‘Blousing Authorities Law’ violates Section 27 of Article III of Florida Constitution requiring *13 all state and officers not county otherwise provided for by the Constitution shall be elected the people or by appointed by the Governor.” 19511, ”3. Chapter Florida, 1939, Laws of is ineffectual ”
to render valid the ‘Housing Authorities Law.’ An examination of the of complaint, thereof prayers bill attached, and Exhibits and the joint and several answer of the Blousing and the Commis- thereof, sioners and the motions to dismiss filed the by and the Housing and other case, in the fail to where pleadings disclose 1, questions 2 and propounded amici are made by curiae part of the in court. or considered the lower transcript The original brief of counsel for a dis- appellants omits cussion thereof and reply the brief counsel for appellants fails to discuss the questions three amici propounded by curiae.
In rel. the case of ex Commis- State Board of County 655, Helseth, sioners v. 104 Fla. an original So. in in mandamus was this Court instituted proceeding the purpose not Chapter whether or determining Acts of as amended Acts of by Florida, Laws of Legislature was in ac- passed by cordance with the 17 Article III of Section requirements Constitution, of the shown This by question Journals. was presented as an in the in issue mandamus proceeding which pointed proof this Court the burden of out settling the controversy. no justiciable There is in- controversy volved propounded record as amici curiae. by rights record, not amici curiae are affected on this neither has for the parties counsel to the presented cause questions Secundum, raised In Vol. supra. Corpus Juris p. it is said:
"(2) an Questioning Constitutionality of Statute amicus curiae cannot attack the of a statute. constitutionality the rule stated the title Law
‘‘Under Constitutional 760, note (12 J., 57) constitutionality C. par. p. a statute be attacked whose are by not one rights statute, not affected an amicus operation of an right curiae has no constitutionality question Act, pass invalidity Court will not on grounds an urged presented by parties.” amicus curiae but record, We fail ap- to find error in and the order affirmed. pealed hereby *14 specially. concurs J.,
Whitfield, J., concurs. Buford, J., to affirmance. agrees
Thomas,
J.,
and
dissent.
J.,C.
Terrell,
Brown,
statute
a
specially). Though
(concurring
Whitfield,
J.
—
face,
on its
adjudicated to be not unconstitutional
been
has
as to violate
portion
operates
or a
so
yet if
statute
it
Hunter v.
Constitution, the
a
See
remedy.
law affords
Owens,
812,
Section and have to establish power that: “The shall Legislature to government, for their municipalities, provide to abolish to to alter or prescribe their and powers, and jurisdiction time, shall municipality same at when any amend any abolished, protection of made for the be shall be provision creditors.” its
In far provisions Chapters so the title of Acts of are covered (1) legally Acts, municipal and are to applied purpose (2) limits, within the or within a reasonable area corporate municipal proper municipal pur- boundaries for a beyond health, pose and welfare of the to conserve public safety municipality, not terms or (3) regulations do law, effect organic or violate legal impliedly expressly any or not or violate the (4) operate do directly indirectly VIII; terms or intendments of Section Section Article IX; Article other provision Federal controlling law, provisions State such lawfully applied, if statutory may, operate accomplish a authorized permissible duly municipal purpose. Provisions of not statute are with the State and Federal accord Constitutions statutes, Federal are within the controlling legis- valid enforced; intent should not be lative but the operation provisions of such invalid be restrained or remedied *15 judicial under proceedings proper parties appropriate by Section Declaration of Florida Rights, Constitution. portions The statute and the validity particular of a portion a statute legality applications may any be the matter requires, determined as occasion when has adjudicata. become res
If subdivisions (g) (h) Chapter Section invalid, adjudged be be be as elim- regarded they may inated, and valid the Act portions applied.
The “commissioners” of the exercise “Authority” may corporate functions and duties conferred bemay statute, upon them subject subordinate to the by superior spheres within proper authority municipality officials; and its authorized and such commissioners have no duties and functions authority delegate conferred upon them as commissioners. Nor can the “commissioners” have whatever over the or any authority municipal officers or municipal over functions duties of or other officers. The commissioners recommend but may not command. Nor can a or its officers confer municipality official any function, or commissioners, upon such authority duty except as be or authorized statute. arbitrary may legally by Any corporate unreasonable exercise and duties functions conferred upon legal binding is of no the commissioners effect, relieved in due against force be course may procedure. of legal covered Chapter
If Section Acts of is not it inoperative, may the title of the Act is otherwise be as eliminated. regarded 6,. 17982, cannot applied be so
Section legally IX, 5 and Article of the Constitution. to violate Sections only eminent domain exercised right and the of those proper purposes; property rights public guarded should be fully whose is to be condemned property law. See organic required controlling way every XVI, 28, Article the Florida Constitution. Section *16 Daugherty Frank A. v. State.
197 So. A Division Filed Opinion June 30, 1940 Denied Rehearing July