Lainhart v. Catts

73 Fla. 735 | Fla. | 1917

Love, Circuit Judge.

The appellant, complainant below, who is the owner of several tracts of land embraced within the Everglades Drainage District, brought this suit in the Circuit Court for Palm Beach County to enjoin and restrain the Board of Commissioners of Everglades Drainage District, and the Tax Collector and Tax Assessor of Palm Beach County from doing any act or thing in the furtherance of the assessment or collection of an acreage tax imposed upon his lands within said district for the years 1916 and 1917, under the provisions of Chapter 6456 of the Laws of Florida, as amended by Chapter 6957; and for the purpose of declaring said Acts unconstitutional..

The suit is brought, against the Governor, Comptroller, State Treasurer, Attorney General and the Commissioner of Agriculture as such officials and against the same officials as the Board of Commissioners of Everglades Drainage District and against the Board of Commissioners of Everglades Drainage District, a corporation created by said Chapter 6456, the Tax Collector and Tax Assessor of Palm Beach County.

Complainant in his bill sets out in substance the provisions of Chapter 6456, Laws of Florida, said Chapter 6456, being entitled.

“An Act to Establish the Everglades Drainage District in This State and Define its Boundaries, to Create a Board of Commissioners for .said District and to Define its Powers, Authorizing the Construction of Canals, Drains, Dikes, Reservoirs and Other Works for the Reclamation and Benefit of the Lands Embraced in said District and to Levy Assessments of Taxes upon the Lands Embraced ,in Such District and to provide for the Collection of the Same and the Sale of Lands to^ Enforce the Collection of Such Assessments and to Authorize the Board of Commissioners of said District to Borrow Money and to Issue -Bonds ,and Dispose of the Same, to Procure Money to Carry Out the Provisions of this Act, to Prevent Injury to Any Works Constructed Under This Act, and to Provide a Penalty for Violating such Provision.”

By said Acts the legislature of the State, established a Drainage District, designated as the Everglades Drainage District, and therein definitely fixed prd prescribed its boundaries, which embraced the whole or part of eight counties of this State, and includes within its boundaries, as it is stated in said bill, about 4,300,000 acres of land, the greater portion of which are swamps and overflowed lands.

■ The Governor, Comptroller, State Treasurer, Attorne)*General and Commissioner of Agriculture and their successors in office are constituted the governing board of such district and are designated as the “Board of Commissioners of Everglades Drainage District,” are vested with all the powers of a body corporate and are authorized to establish, construct and maintain a system of canals, drains, levees, etc., to effect the drainage and reclamation of the lands within said district. Said Board has conferred upon it the right of eminent domain, and are authorized to enter upon, take and use such lands as it may deem necessary for the purposes stated'in the Act, pending condemnation proceedings.

By section 5 of Chapter 6456 as amended by section 1 of Chapter 6957, for the. purpose of constructing, completing and maintaining the works of drainag'e and reclamation authorized by the Act, annual assessments of taxes beginning with and including the year 1915 are levied and imposed upon certain definite and particularly described lands in said district.

In substance and effect the Act'divides the land in the-drainage district into- three different zones or classes, in each of which is located certain land -of complainant. On the lands embraced within the first zone, and which are particularly described is imposed an annual assessment or charge of 15c per acre for a period of four years; thereafter the rate is increased to 20c -per acre per annum for a period of four years; and thereafter the rate is fixed at 25c per acre annually. On the lands in the second zone, likewise particularly described in the Act, is imposed an assessment or charge of 8c per acre for the first four years after which the rate is increased to 9c per acre annually for the {succeeding four years and thereafter the rate is fixed at 10c per acre annually. In the third zone, the lands lying in which are also particularly described, the rate is fixed at 5c per acre annually. Certain specifically described lands are exempt from any charges or assessment.

It is provided that the proceeds derived from such assessments, shall be used by the said Board in defraying the costs and expenses incurred in draining and reclaiming the lands in said district, carrying out the provisions of the Act, repaying loans and' interest and in the creation of a sinking fund for the retirement of such bonds as the Board might issue and the payment of the interest thereon, said Board being authorise! to issue and sell bonds of said Everglades Drainage District not to exceed the principal sum of $3,500,000, the proceeds of which are to be used for the purpose of draining and reclaiming the lands located in said District. • ■

At a stated time, each year, the Board is required to prepare for each county, included in the drainage District a list of the lands in such county which lie in said District, particularly- describing the lands, the amount assessed upon each section of land or part thereof, and shall thereupon cause to be published in a newspaper at Tallahassee and Miami once a week for two weeks “a notice of the completion of such listsj and. that the same can'be examined at the office of said Board, and that on a day to be specified in said notice, not less than fifteen days from date of the first publication thereof the said Board shall meet at the office of the said Board and hear and determine all complaints in relation to the preparation of such lists by said Board.”

These lists, when completed, are required to be forwarded immediately to the Tax Assessor of the respective counties lying wholly or in part in said District, and thereupon such Tax Assessor. is required to enter the same upon the tax roll. Provisions for collecting such charges or assessments upon the land and for enforcing the same as well as for the redemption of lands from tax sale, are made in the Act similar to- those of the statute providing -for the collection of general State and county taxes but the fees of such officers fixed by the Act are required to be paid by the said Board.

By the Act “the State Treasurer shall be the custodian of all funds belonging to said Board and to said Drainage District” which funds are to be disbursed only upon the order of the Comptroller, countersigned by the Governor, such order to be drawn only upon vouchers approved by said Board.

• The bill alleges the organization of the Board of Commissioners of said Drainage District and that at a meeting held on January nth, 1916, it prepared lists of lands for the respective counties located in said District, forwarded same to the proper Tax Assessors, and published the notice required, all in compliance with the provisions of the Acts; that the Tax Assessor of Palm Beach County .duly entered the list transmitted to him upon the tax roll, and that under said Acts, certain assessments were levied and imposed upon certain described lands of complainant and that the Tax Collector is proceeding to collect such Drainage tax or assessment and unless restrained by the court, he will proceed to sell such lands of complainant for the said tax.

Complainant further charges that the said Board of Commissioners have adopted a resolution providing for the issuance, of bonds, as authorized 'by the said Acts, $1,500,000 to be dated November 1, 1915, $1,500,000 to be dated May 1, 1916, and $500,000 to be dated May 1, 1917, to mature at various dates from the year 1920 to the year 1935 inclusive, and that said Boárd is now attempting to sell portions of said bonds.

It- is further alleged in said bill that the greater portion of the lands embraced within said District are swamp and overflowed lands, but that many other portions of said lands are pine, hammock and open prairie and grazing lands, and require no drainage to render them fit and suitable for cultivation, grazing and similar uses; that a tract of 320 acres, one half of which is owned- by complainant, against which a drainage tax of $48.00 is assessed by Chapter 6456 as amended, is dry hammock land and will receive no benefit whatever from the proposed works of drainage and other improvements authorized by said Act.

“That the lists of land sent out by the said Board to the Tax Assessors of the various counties and entered by them upon the said Rolls were taken and copied entirely from the said Chapter 6456 as amended by Chapter 6957, and that the Legislature of the State of Florida, the Board of Drainage Commissioners and the said Tax Assessor did not, nor. did any of them, personally or by agents or representatives, or in any other way, go upon, view, investigate or examine the said lands in said District or any' part thereof to determine the character of the said lands as being in fact swamp and overflowed lands, or lands which require Drainage or otherwise, nor has any investigation ever been conducted or evidence taken of any sort in respect to the nature, character and situation of the various lands in said District; but the said Acts were enacted and the said taxes levied and imposed and the said lists prepared without any such investigation or evidence; so that in fact said acreage has been imposed and assessed, not upon all the lands which are within the boundaries of said Drainage District, or upon the lands therein which are in fact swamp and overflowed lands, but the said acreage taxes have been levied and imposed arbitrarily and without any rule or plan which would take into consideration any benefits or damages which might result from the said proposed works of drainage or other improvements, and without any hearing- or opportunity for a hearing being given or afforded your orator or other persons or corporations to present evidence as to the character and quality of said lands, or to show that the same would not receive benefits from the said drainage works and improvements to be paid for with said taxes, or to show that the said lands are not subject to the said assessment of said acreage tax, or to present any opposition whatever to said assessment; the said levy,' as-' sessmerat and imposition of said tax being- arbitrarily made by the legislature of the State of Florida without personal investigation, knowledge or familiarity with the character and quality of the aforesaid lands in said District.”

The bill charges that the said Acts of the Legislature and the attempted levy, assessment and imposition of said Drainage tax thereby inade is in violation of the State Constitution 'in several specified particulars, hereinafter noted and prays- that Chapter 6456 ás amendecfby Chapter 6957 be declared unconstitutional; that the acts of the Board of Commissioners and of the Tax Collector of Palm Beach County resulting in the entry of the acreage tax upon the tax roll by the assessor;, and the attempted assessment of such tax contained and extended upon the Tax Rolls by the Assessor for the year 1916 be declared null and void and coñstitutes a cloud upon the title of complainant’s said lands; that the said Board of Commissioners and Tax Assessor be restrained and enjoined from performing certain duties imposed upon them respectively in the furtherance of the imposition, assessment or entry upon the tax rolls of Palm Beach County of said acreage tax for 1917, or any other tax or imposition under said Act, and that the said Tax Collector be restrained from collecting or attempting to collect said acreage tax for the year 1917, for general relief and for process.

To this bill defendants demurred on the grounds, in substance, of absence of equity in the bill and that it did not appear from the bill that the Acts attacked were unconstitutional in the particulars 'charged. The demurrer was Sustained, and from the order sustaining it, the complainant h'as entered his appeal.'

The purpose of the Act assailed as stated in section 1 is that “of draining and reclaiming the lands hereinafter described" and- protecting' the same1 from the effects of water, for'agricultural' and sanitary purposes, and'for the public convenience and welfare, arid for the public utility and benefit, a drainage district is hereby established to be known and designated as the Everglades Drainage District, the territorial boundaries of which” follow.

It is abundantly settled by the decisions of practically all of the States of the Union having large bodies of swamp and overflowed lands within their borders, which in their natural state are to a great extent unfit for habitation or cultivation, and which it is desired to utilize for such purposes, as well as by the Supreme Court of the United States, that the legislature, unless restricted by the State Constitution can create directly such districts such as the one provided for in the Act under consideration, or it may provide for their institution through proceedings in the courts or by local commissions in which the parties interested are notified to appear and present any objections they may have, the propriety of a delegation of this sort being a question for the State alone to determine.

In the consideration of questions arising under a statute of California providing for the establishment of drainage districts, the Supreme Court of the United States said:

“It is not open to doubt that it is within the power of the State to require local improvements to be made which are essential to the health and prosperity of any community within its borders, to this end, it may provide for the construction of canals for draining inundations, as well as for the opening of streets in cities and of roads in the country. The system' adopted in California to reclaim swamp and overflowed lands by forming districts, where the lands are susceptible of reclamation in one mode, is not essentially different from that of other States, where lands of that description are found. The fact that the lands may be situated in more than one county can not affect the State to delegate authority for the establishment of a reclamation district to the supervisors of the county containing- a greater part Of the lands. Such authority-may be lodged in any board or tribunal which the legislature may designate.” Hagar v. Reclamation District, No. 108, 111 U. S. 701.

To the same effect are Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 56; Neal v. Vansickle, 72 Neb. 105, 100 N. W. Rep. 200; Houck v. Little River Drainage Dist., 248 Mo. 373, 154 S. W. Rep. 739; affirmed in 239 U. S. 254.

While this general legislative power is not denied by complaint, yet the constitutional validity of the Acts in question, the levy, assessments and imposition of the Drainage tax or rates are attacked by him on various grounds. It is necessary, however, that the general power of the legislature with reference to the establishment of drainage districts should be stated, as it is upon this that the validity of the statute, if it is to stand, must ]je based.

In the consideration of the objections presented and urged in this case, we shall assume as settled by the prior decisions of this court the principles of statutory construction that “no duly enacted statute should be declared inoperative on the ground that it violates organic law, unless it appears beyond all reasonable doubt that under any rational view that may be taken, it is in positive conflict with some identified or designated provision of Constit# tionál law.”' Pinellas Park Drainage Dist. v. Kessler, 69 Fla. 558, 68 South, Rep. 668; City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769; Jackson v. Neff, 64 Fla. 326, 60 South. Rep. 350.

And that “our State Constitution „is a limitation upon power; and unless legislation duly passed be clearly contrary to some express or implied prohibition in the Constitution, the courts have no authority to pronounce it invalid.” State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929; Stewart v. DeLand & Lake Helen Road & Bridge Dist., 71 Fla. 758, 71 South. Rep. 42.

' The burden, then, of showing beyond a reasonable doubt that these Acts and their provisions which are assailed, are- in positive conflict with some identified or designated provision of the organic law of the State, is upon the complainant; and in recognition of this obligation he urges that they are unconstitutional upon various grounds, which we will consider.

1. Complainant contends that the Acts are inhibited by the following clauses of Section 20, Article III of the Constitution.

“The legislature shall not pass special or local laws in any of the following enumerated cases: that is to say, regulating- the jurisdiction and duties’ of any class of officers except municipal officers, * * * for assessment and collection of taxes for state and county purposes; * * * regulating' the fees of officers of the State and county;” and by section 21 of the same Article.

Taking up first the particular objection that the provision of these Acts imposing- assessments or charges upon the lands embraced within the said District are prohibited-by the clause of Section 20,' Article III of the ■Constitution, providing that the legislature shall not pass 'Special or local laws for assessment of taxes for county and State purposes, it1 must be borne in mind that the Drainage District in question is established directly by the legislature of the .State, - its* creation not being delegated to Local Boards, Commissions or other instrumentalities-’; the assessments or charges upon the lands are fixed, determined and imposed directly by the legislature and-áre not referred to the judgment of any Board or body to be ascertained and determined.

Such assessment or charges are, as stated in the Acts, to provide means to accomplish the purposes set'out in these Acts and is a peculiar species of taxation distinct from the general burden imposed for State, county and municipal purposes, in that it is a local or special charge placed upon the land, situated in the Drainage District to pay for public improvements proposed to be made therein, on the theory that such property thereby derives a special benefit, and therefore such charges constitute a special assessment. Roesch v. State ex rel. Wyman, 62 Fla. 270, 56 South. Rep. 562.

It has been announced in a number of opinions by this court that “there is no express provision in the State Constitution as to special assessments nor is there, any express provision in such Constitution as to the formation of taxing districts for particular purposes.” Stewart v. DeLand Lake Helen Road & Bridge District, 71 Fla. 158, 71 South. Rep. 42; Edwards v. City of Ocala, 58 Fla. 217, 50 South. Rep. 421; Anderson v. City of Ocala, 67 Fla. 204, 64 South. Rep. 775.

If there is no express provision in the State Constitution as to special assessments for Special District purposes, and as the appellant has failed to point out any implied prohibition in the organic law relative to this subject, it follows that this ground is untenable, for “where a statute does not violate the Federal or State Constitution the legislative will is supreme and its policy is not subject to review by the court, whose province it is not to regulate, but to effectuate the policy of the law as expressed in valid statutes.” State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. Rep. 969; Davis v. Florida Power Co., 64 Fla. 246, 60 South. Rep. 759.

2. It is urged that the Acts in question violate that part of Section 20, Article III, prohibiting the legislature from passing local or special laws, regulating the jurisdiction and duties of any class of officers except municipal officers and regulating the fees of officers of the State and county, in that the Acts referred to impose upon Tax Assessors and Tax Collectors of the counties affected by the Drainage District certain duties respecting the Drainage Assessment and its collection which duties are not required of such officer in other counties of the State; and that the Acts provide for a certain compensation or fees to be paid the Tax Assessors, Tax Collectors and Clerks’ of Circuit Court of the Counties affected by the Drainage District for services rendered in connection with the assessment, collection and enforcement of the special assessment, which compensation is not paid to such officers in other counties of the State.

The duties and. jurisdiction or powers of the officers in question do not differ in nature or kind from those of a like class of officers in the State; the difference is in degree, not kind.

The establishment of the Drainage District being within and a valid exercise of the legislative power, the duties and compensations provided for by these Acts are “a mere incident to and the necessary concomitant with' the power” we have held above to exist in the legislature to establish the Drainage District and to carry out the purpose for which it was established. Kroegel v. Whyte, 62 Fla. 527, 56 South. Rep. 498.

III. As a further ground of objection to the constitutionality of the law, it is urged that the said Acts violate Sections. 1, 2, 3 and 5, Article IX of the Constitution in that they provide for taxation which is not based upon a uniform and equal rate; that the tax is imposed upon a special class or description of property, arbitrarily and without just cause or reason designated by the Acts themselves and not by any officer or officers, of the.State of Florida of the State or any county or municipality of the State; that such tax is imposed and levied by law and not in pursuance of .law; that it is not assessed, imposed or levied upon the principles established by the Constitution for Státe taxation; that it is imposed without regard to the valuation of the property taxed; that the lands in the District are arbitrarily divided into four classes or divisions against which a different and discriminatory tax is imposed.

The sections of Article IX upon which these objections are based, are as follows: ¡

“Section 1. The legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes.

“Section 2. The legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year, and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State.

“Section 3. No tax shall be levied except in pursuance of law.

“Section 5. The legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for the State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the 'property within their limits. The legislature may also provide for levying a special. capitation tax, and a tax on licenses. But the capitation tax shall not exceed one dollar a year and shall be applied exclusively to common school purposes.”

As has heretofore been pointed out, the charges imposed by the Acts in question constitute a special assessment upon the lands in the District; and is distinct from the general burden imposed for State, county and municipal purposes, and as has been explained by a distinguished authority, are governed by principles that do not apply universally. The general levy of taxes is understood to. exact contributions' for the general benefits of government, and it promises nothing to the person taxed 'beyond what may be anticipated from an administration of the laws for individual protection and the general public good, special assessments on the other hand are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and in addition ,to the general levy, they demand that special contributions, in consideration of the special benefits shall be made by the person receiving it. 2 Cooley on Taxation, 1153.

As we have above stated there is no express provision in the Constitution as to special assessments for local improvements.

The legislature in the exercise of its lawful powers has established a special district for drainage and reclamation purposes, and in the exercise of its wisdom and judgment, has divided the lands in the District upon which a charge is to be imposed into three classes or zones for the purpose of apportioning such.charges in proportion to the special benefits which such land will receive from the proposed improvements. While the rate varies as to each zone, yet it is equal and uniform as applied to every acre in each zone; no discriminations in favor of any particular acre or- tract in any one class or zone being made. Whether or nqt this method of apportionment is the most just and equitable that can be devised, it is not within the province of the judiciary to determine.

It is not to be denied that a tax or assessment, whether imposed for the purpose of general taxation or for local improvement must be uniform in the sense that it must be imposed upon the property subject to taxation or special assessinent, so that, as in the case of land, the burden or charge on every parcel will bear a just proportion to that imposed on every other.

As held in Egyptian Levee Co. v. Hardin, 27 Mo. 495, it is not the province of the judiciary to interfere if the plans adopted may not distribute the burdens according to the measure of benefits, as well as some other might, when the case does not come within the constitutional restrictions. The law making- department of government is entrusted with the whole subject; and if practical injustice is done the remedy is in the hands of the people. “Equality of taxation may, however, be regarded as one of those Utopian visions, which neither philosopher nor legislator has ever yet realized. Approximation may be arrived at and ought to be.”

A case involving the principle of apportionment similar to that now under consideration, arose under a Mississippi statute. It provided for a levee tax, prescribed the district of assessment and directed the tax to be laid by the acre, according to an arbitrary standard of value fixed by the Act.

Unimproved land was fixed at $5.00 per acre except in two specified counties, where it was fixed at $3.00 per acre; the improved lands at $30.00 per acre except in the same two counties in which it was fixed at $20.00 per acre. The Constitution of Mississippi provided that “taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law.” This legislation was upheld by the court in Daily v. Swope, 47 Miss. 367. It was held in this case, that the constitutional provision quoted applied only to general taxation and had no reference to special assessments for local improvements; that the legislature could impose a specific tax on the acre, and also declare a rate according to a value ascertained and determined by itself.

In the case of Houck v. Little River Drainage Dist., 248 Mo. 373, 154 S. W. Rep. 739, which was affirmed in Houck v. Little River Drainage Dist., 239 U. S. 254,

Sup. C't. Rep. , the court said: “It is safe to say that the doctrine is firmly established in this State, that the legislature, acting' within its constitutional powers, may fix the territorial limits of special taxing- districts, and may also' fix the actual or maximum amount of special assessments, which they may place at a level rate, founded upon a unit of area or frontage, or at a rate founded upon proceedings to ascertain the actual benefits accruing- to each particular tract.”

The Court must assume that in imposing local assessments, whereby the value and desirability of land will be increased the legislature designed to distribute the cost thereof upon the land in proportion to the special benefits it would receive from the system of improvements, unless the scope and meaning of the language employed in the Act drives the judiciary from that assumption. Daily v. Swope, supra.

Sections 2, 3 and 5 of Article IX of the Constitution apply only to general taxation for State, county and municipal purposes and have no reference to special assessments for local improvements.

The Act of 1915, Chapter 6957, amending Chapter 6456, in respect to exempting certain described land from any charges, was in effect only an ¿Iteration of the boundaries of the Drainage District, which as the legislature had power to establish, it also had power to change, and its action in this respect we must 'assume was founded upon its determination that the exempt lands because of their location and condition either would not receive any special benefit from the system of proposed improvements or else -that such improvement would be so remote that the benefits therefrom would not be in proportion to the -charges imposed.

This was a power that the legislature might well exercise and cannot affect the constitutional validity of these Acts.

Where a statute does not violate-the Federal or State Constitution, tire legislative will is supreme, and its pol-. icy is not subject to review by the courts, whose province is not to regulate, but to effectuate 'the policy of the law as expressed in valid statutes. State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. Rep. 969; Davis v. Florida Power Co., 64 Fla. 246, 60 South. Rep. 759.

As sections 20 and 21 Article III and sections 1, 2, 3 and 5, Article IX of the Constitution do hot relate to special assessments, they do not limit or restrict the legislative powers in reference thereto, and therefore the Acts attacked are not obnoxious to the cited provisions of the Constitution.

IV.-. It is insisted that the provision of the Act authorizing the Drainage Commissioners to expend the proceeds derived from the special assessments, without a special appropriation by the legislature is in violation of section 4 of Article. IX of the Constitution, providing that “no money shall be drawn.from the Treasury except in pursuance of appropriations made by law.”

Without now deciding' the right of- complainant to raise this question under the state of facts alleged in his bill, yet conceding that the question is properly before us for decision, complainant has failed to point out -how or in what manner the statute violates this constitutional provision. ■ '

The money raised by the special assessment is not paid in to- the general treasury of the State, hut is a special fund, placed in the custody of the State Treasurer to be expended for certain specified' purposes designated in the Act, as in sections 6, 24 and 25.

The revenue raised by virtue of the Act, is to- be used for the purpose of draining- and reclaiming the land in the Drainage District in order to render the same more susceptible to cultivation, more habitable and more sanitary, in the interest of the public health, benefit and welfare, as plainly stated in the Act.

The object of such a constitutional provision as the one last referred to is to prevent the expenditure of the public funds without the consent of the people, by their representatives in legislative Acts, and it secures to the legislature the exclusive power of deciding how, when and for what purpose the public funds shall be applied in carrying on the government. 36 Cy-c. 891.

An appropriation may be made by setting apart and specially appropriating- the money derived from a particular source of revenue to a particular use. Ristine v. State, 20 Ind. 328, text 337.

It seems clear from the Acts under consideration that the legislature intended to, and did appropriate the revenues derived .from' the special assessment to carry out the very purpose of the Acts.

5. Another contention made by complainant against the constitutionality of the Acts is that the subject of Chapter 6456 is not explained in its title, as, it is claimed, is required by Section 16, Article III of the Constitution providing that “Each law enacted in the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be expressed in'the title.”

It is urged by .complainant that the title of said Act relates to and contemplates a general law for the establishment of drainage districts throughout the State and the levy of taxes thereon, whereas only a single district by specific description is established by the Act, and an annual acreage tax is levied on certain lands in the District ; that the title indicates and presumes a general law, whereas the Act is local and special; and that the title “provides for the assessment of lands to be benefited by assessment of benefits .and taxation; whereas the Act fails to make such provision but imposes a special acreage tax, neither uniform nor equal; upon certain and only a part of the lands in such District.

A careful reading of the title of this Act, quoted above, fails to show the. existence of the specific objections interposed thereto.

The title ’of the Act sufficiently expresses' it's subject, certainly enough só as to give reasonable notice of the matters dealt with by the Act and as to its purpose and scope. The title need not be an' index to the Act, it' being sufficient if it may reasonably lead to inqúiry as to its contents. Butler v. Perry, 67 Fla. 405, 66 South. Rep. 150; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929.

6. Another objection is that the Act violates Section 12 of the.Bill of Rights, which provides that no persons shall “be deprived of life, liberty or property without due process of law, nor shall private property be taken without just compensation,” and in addition it violates section 29, Art. XVI of the Constitution, providing that “No- private property nor right of way shall be appropriated to- the use of any corporation or individual until full compensation therefor shall first be made to the owner, or first secured to him by deposit of money.” The violation alleged being the provision of Section 4 of the Act empowering the Board of Commissioners of the Drainage District, in the exercise of the right of eminent domain conferred upon it, to enter upon, take and use such lands as it may deem necessary for -the public powers and purposes of said Board as are granted by the Act, pending condemnation proceedings. It is unnecessary to determine this question in this case as no fact is alleged in the bill involving the exercise of this right', nor is any right of the complainant alleged to be invaded under this section and even if that part of the Act complained of is unconstitutional, a question which we do not now pass upon, it would not affect the remaining sections. By Section 30 of the Act it is provided that “any clause or -section of this Act which for any reason may be declared invalid may be eliminated from this Act and the remaining portion or portions thereof shall be and remain in full force and valid as if such invalid clause or section had not been incorporated therein.”

.It has heretofore been held by this court that if., a duly enacted statute contains provisions that are invalid because in conflict with organic law and such invalid portion may be severed and the remainder of the statute may then be made effective for the purpose designed and will' not cause results not intended by the Legislature, and it does not appear that the statute would not have been enacted without the invalid portions, such invalid portions may be disregarded and the valid portions enforced if it can be done to' effectuate the legislative intent. Harper v. Galloway, 58 Fla. 255, 51 South. Rep. 226.

The court will not pass upon the constitutionality of a part of an act in a proceeding which does not involve the part which is claimed to- be unconstitutional, if the part remaining is complete and operative within itself. State v. Newton, 59 Ind. 173; State v. Stuht, 52 Neb. 209.

7. Appellant further contends that the said Acts and the proceedings of the defendants, the said Board of Drainag-e Commissioners, the Tax Assessor and Tax Collector thereunder, violate Sections 1 and 4 of the Bill of Rights and Section 29 of Article XVI of the Constitution of this State, in that the statute does not provide for any notice to, or hearing of the owners of land in the District respecting the selection of lands assessed under said Act or upon which the acreage tax is imposed; that the Legislature has arbitrarily imposed upon lands of equal and uniform value in said District a different rate of tax and exempted other lands in said district from any tax; and that the said Acts and the actions of said defendants in attempting to levy the said tax on appellant’s lands deny to him the equal protection of the law and deprive ’him of this property without due process of law.

The ultimate contention of' appellant is that -his land cannot be subjected to the charge imposed by the Act because he has not been afforded an opportunity of contesting the merits of the apportionment of .such charge as made by the Legislature, but that this- body has arbitrarily imposed upon lands of equal and uniform value in said District a different rate of taxation.

The power of the Legislature in matters of taxation is unlimited, except as restricted 'by constitutional provisions. ' This is one of the attributes of sovereignty which the people have placed in its hands, and they have intrusted its exercise to its discretion, either in the manner, or to the extent to which it is to be applied. This charge imposed upon the land is based upon the theory that it is in return for the benefit received by the property assessed, directly or indirectly. For the purpose of apportioning this benefit the legislature has determined in advance what property will be benefited by designating the district within which it is to be collected, as well as the property on which it is laid, and further apportions the charge imposed by dividing the lands in the District which the legislature has determined will be benefited by the proposed improvements, into three classes or zones, such charge being laid on every acre of land in each zone, and is equal and uniform in each zone, but the' fate varies as to each zone. . '

This method of assessment and apportionment is within the power of the legislative' body, and cannot be •successfully questioned unless it is só' devoid of any reasonable basis as to be essentially arbitrary and an abuse of power. There is a wide difference between a special tax or assessment for local improveménts prescribed by the legislative body, having full authority over the subject, and one dependent upon the judgment and actions of bodies or instrumentalities acting under delegated powers.

It is reasonable to presumq, if indeed it is not obvious, that all lands lying within the Drainag-e District, whether actually overflowed or not, will be greatly enhanced in 'value, when the purposes of this legislation have been accomplished, by being rendered far more desirable for' habitation and more susceptible to cultivation than in their present natural.condition, they being for the most part, as alleged in the bill, now sw'amp and overflowed lands. At any rate this question is not open to investigation-in this case. As stated by the United States Supreme Court, quoting and approving from Spencer v. Merchant, 100 N. Y. 385; “The lands might have been benefited by the improvement, and so the legislative determination that they were, and to what amount- or proportion of the cost, even if it may have been mistakenly unjust, is not open to our review. The question of special benefit and the property to which it extends, is of necessity a question of fact, and when the legislature determines.it in a case within their general power, its decision must be final. We can see in the determination reached possible sources of error and perhaps even of injustice, but we are not at liberty to say that the tax on the property covered by.the law of 1881 was imposed without reference to special benefits. The legislature practically , determined that the lands described in said Act were peculiarly benefited by the improvement to a certain specified amount, which constituted a just proportion of the whole cost and expense.” Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921. To the same effect is Parsons v. District of Columbia, 170 U. S. 45, 18 Sup. Ct. Rep. 521. In Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. Rep. 663, the distinction between a tax or assessment imposed by a direct exercise of the legislative power, calling- for no inquiry into tjie weight of the evidence, nor for anything- in the nature of a judicial examination, and a tax or assessment imposed upon property according to its value, to be ascertained by an Assessor, upon evidence, was pointed out, and it was held that in the former case no notice to the owner is required, but that in the latter case, the officers in estimating the value act judicially and notice and opportunity to be heard are necessary.

In Embree v. Kansas City & Liberty Boulevard Rd. Dist., 240 U. S. 242, text 250, 36, Sup. Ct. Rep. 317, 60 L. Ed. 624, Mr. Justice Van DeVanter in delivering the opinion said: “The. claim that the land owners are entitled to a hearing on the question of whether the benefits in the different zones will be in accord with the graduated ratings of their lands, is not seriously pressed upon our attention and requires but brief notice. The ratings are not fixed in the exercise of delegated authority, but by the statute itself, which must be taken as a legislative-determination that in a district lawfully constituted the benefits to the lands in the different zones will be in approximate accord with the ratings named. This being so, no hearing is essential to give effect to this feature of the. apportionment. A legislative Act of this nature can be successfully called into question only when it is so devoid of any reasonable basis as to be essentially arbitrary and an abuse of power.

The reclamation of the vast body of swamp and overflowed land in the Everglades Drainage District is a public improvement of great magnitude and of the utmost importance to all interested in the lands lying within the District. If left to individual initiative it probably would never be accomplished. The fact that such improvement may not be of direct benefit to every parcel of land within the District constitutes no just reason why it should not bear its portion of the expense incurred in the work of drainage and reclamation of the District as a whole; and the further fact that some of thedands are not overflowed, is not conclusive that they receive no benefit.

“If it be essential or material for the prosperity of the community, and if the improvement be such that all the landholders have to a certain extent a common interest, and the improvement can not be accomplished without the concurrence of all or nearly all of such owners, by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made and the land rendered useful to all and at their common expense. In such case the absolute right of each individual owner of land must yield to a certain extent, or be modified by corresponding rights on the part of other owners, for what is declared, upon the whole, to be for the public benefit.” Fallbrook v. Irrigation District v. Bradley, 164 U. S. 112.

In the decision of' this case we do not hold that the courts are not open to review every exercise of legislative power or determination,' for as it is said in Wagner v. Leser, 239 U. S. 207, 60 L. Ed. 230. “We do not understand that there may not be cases of such flagrant abuse of legislative power as would warrant the intervention of a court' of equity to protect the constitutional right of land owners, because of arbitrary and wholly unwarranted legislation.”

In the present case, the facts alleged in complainant’s bill are not sufficient to show that there is such a disproportion between the charges imposed upon his land and the benefits that may well be presumed will be conferred it 'by the drainage and reclamation work contemplated by the Acts under consideration, as to render it apparent that in fixing the rates prescribed by the statute, the legislature has acted so unreasonably and arbitrarily, with respect to complainant’s land, as that the charge imposed upon it constitutes “a flagrant abuse of legislative power.”

We are unable to see that the Act of the legislature in question, or the manner of their enforcement operate to deprive complainant of any right secured to him by any of the provisions of the constitution of this State.

The order appealed from is affirmed.

Browne, C. J., and' Taylor, Shackleford and Whitfield, J. J., concur. Ellis, J., disqualified.

Case Details

Case Name: Lainhart v. Catts

Court Name: Supreme Court of Florida

Date Published: Mar 29, 1917

Citation: 73 Fla. 735

Court Abbreviation: Fla.