State of Florida Ex Rel. Davis v. City of Stuart

рractically was the case the State have left testimony fourteen-year-old support except say Ruby Long sister that she overheard Soles who said Long, standing and unex- shot Clifford alone he produce insufficient plained might have been deemed an abiding certainty to moral in the minds of the conviction guilt jury as the accused. judgment

I think reversed. should be Davis, Attorney rel., General, ex H. Florida, Fred State al., municipal corpora Co-relators, et v. Stuart, Florida, Respondent. tion of

En Bane.

Opinion January filed 1929. Relators; Rogers, for

Dame & Kanner, Respondents. Brobston and Smith & Edwin original jurisdiction. is a case An J. This Brown, quo warranto, was in the nature filed information on the of the State relation of Attor- in the name court charging thirty co-relators, un- odd ney and some General authority over the lands of municipal usurpation of lawful City of Stuart violation the co-relators prayed rights co-relators, such that constitutional requested City of to answer respondent Stuart authority exercising powers and it was what warrant or municipal corporation a over said lands. The franchises of allegations fact, length at in the set out considerable information, Briefly, grava- later. will be discussed charge men of the is that said lands are of a rural or su- character, up portion burban remote from the built of said entirety range municipal benefits, outside the existing prospective, and that certain acts ex- tending-the City corporate limits of said so to embrace subject (cid:127)said City lands and thus render them taxes for' City purposes, under which the is exercising munici- pal authority lands, said arbitrary, over are unreasonable being and void as in violation of the property constitutional rights owning of the co-relators the same. upon

The writ was order of this court prayed, issued as respondent quash filed a motion to the informa- tion, thereto, upon also demurrer ground legislativе acts therein referred to are valid and unconsti- tutional, that no violation of the constitution is shown, and remedy political the co-relators is judi- and not cial. Realtors then filed judgment motion for of ouster for lack Respondent of sufficient answer. permitted was later answer, setting up to file its authority its legisla- from said acts, alleging tive benefits to the of the co-re- lators, being reason of City. taken inside the There- Attorney and his General interposed co-relators judgment ouster, upon motion for ground that, out, pointed respondent reasons had failed to make sufficient answer to information.

75 question presented pleading is, The first is one of —that respondent any right sufficiency did the have to attack the information, writ, by after the issuance of the mo- quash demurrer, tion to in view the fact that the Attorney General was a realtor therein? general that, usurpation public rule “where aof

office, franchise, by or a State, claimed and an infor- by Attorney mation is filed right General to test the to enjoy hold such only necessary office or such franchise, isit allege, generally, person holding to that the the office enjoying franchise, does so authority, without lawful State, case, against such a as it devolves person such show complete legal right enjoy ’’ privileges question. Enterprise State, 128, v. 29 Fla., So., 740; Carson’s Fla. Common Pldg., p. Law 191. against State, As only when the information contains general allegation such of the exercise of a franchise with- authority, respondent may out lawful meet this set- ting up answer, in its as an justification, legisla- act of the ture, complete, valid and constitutional face, on its act authorizes the exercise of such If, franchise. statute,

reason aliunde the face the same be deemed unconstitutional, such as that it lawfully was not adopted, constitutionally or cannot be applied subject matter contravening rights thereof without persons prop- or of erty protected constitution, the Attorney General up by replication could set such answer, an or, if he may prefers, he do so to with, commence in the information If itself. he chooses to embrace allegations such in the in- legal formation, sufficiency thereof is as subject much attack and test demurrer or other appropriate plead- ing they up by way would be if set replication. Thus, ‘ ‘ Crandall, Dr. in his recent work on Florida Common Law 672-3, Practice,” pages pertinently observes: “Under See- 3581, 3582, Stats., 1920, Rev. 3584, tions Gen. Sections 1927, Attorney 5446, 5447, 5449, C. L. clear the G. it is that if General, prefers right he not to avail himself the generally upon allege usurpations respondent call the enjoys he to show what warrant exercises the office or may allege privilege, specific franchise or facts re- the the upon required lied in a manner that of private similar to a person who files the in his information assertion of claim to an office. plead- The effect of this would be advance the ings step, legislature one and is the method which the evi- dently Attorney intended to used where the be General claiming files the upon party information the relation of a an title to office.” State, Enterprise Fla., 140,

Also, in v. 29 was it contend charged respondents information the that with ed while the municipal functions, usurpation of it set forth facts them, it right this, their to exercise in which showed appear two was made to therein that while the first efforts third, they incorporation illegal, under at were connection, claimed, valid. In court was said: “We proposition that, be a if informa concede correct charge usurpation which the faсts tion states legal right respond show clear based, those facts rel. It ex was said State insufficient. ents, be it would prin general same rules and Saxon, supra, that v. Law govern in in civil actions also pleading enforced ciples case, In that the lower court proceedings.” quo warranto overruling demur action in its because of reversed was Sarasota, City of also State v. See information. rer to the Saxon, 1458; 563; Cyc., 32 v. Fla., State R., 473, 92 109 So. Connors, 27 801; Attorney v. R. General Fla., 342, 5 So. 25 authorities, these conclude R. 7. we 329, 9 Under Fla., So. one an information such as the sufficiency legal holding by demurrer. This may be tested question here

77 Kennerly, Fla., not in with v. conflict State 26 8 So. 310; Bryan, Fla., 293, State 50 39 929; v. R. v. So. State Gleason, Fla., 190. the propriety Bnt of a motion quash proper cases, such an information is doubtful. In Cyc., quash might motion to writ lie. 1459.

If, relators, allegations as suggested fact, charge usurpation, might which form basis of the surplusage, treated as .because of the fact that the informa- Attorney General, tion is filed on the relation might find relators themselves in the situation as that same City disclosed the tenth to the in headnote case of State v. Sarasota, supra. of legal sufficiency

We the must therefore consider of the brought by question information demurrer. This as in the ques- question raises the which underlies the case—a whole Is important. it is this: And as difficult as tion extending mu- establishing or of action subject by nicipal direct enactment boundaries so, if case any case, and what judicial review in judicial review allow- And, particularly, of cases: class is unreasonable charged, the extension where, as is here able rural subjects city taxes takes in and arbitrary and mu- portion of the built-up territory removed from the far range mu- of beyond reach entirely nicipality and nicipal benefits? discloses information summary оf

A condensed following facts: of Chapter 11214 Laws of enactment to the

Rrior approximately of Stuart embraced 1925, the Town then water. town portion of which was acres, a considerable by on the bounded north of land the corner located on was south fork west and on Lucie River broad St. ex- and western boundaries river, and the northern of that of tended center of tbe channel of these bodies tbe two population water. The town then 2000. was about 21, Chapter 11214, approved May 1925, purported Said Stuart, municipal government to abolish the of the Town Municipality designated City to establish Stuart, and to extend the boundaries so as to take con- body of siderable land eastward 'and from southward limits, former town bounded on the north the St. Lucie River on stream, the east the same' which turns southward the sea mile toward about one east of the old town, municipal boundary extending to the center the river on the north and east.

During year, by that same an approved act Nov. 30, Chap. 11750 of the of Florida, Laws an attempt was made corporate further extend the City limits of Stuart body so in a as to take considerable land which included the lands of the relators on located the North side of the River, lying St. Lucie Northwest, North and North- already east of the incorporated, area extending South- boundary ward to former Northern in the center the river. This act also penin- embraced a narrow sula, Point, known extending as Sewell’s from the South- east corner of territory the additional on the mainland and projecting Southward between the waters of the St. Lucie to the West and Indian River to’the peninsular East. This subsequently by was another act withdrawn and from municipality. excluded the of acts of Legislature, valid, effect these two The if of the area the municipality to increase was fifteen fold, 9,460 is, around 640 acres to about strip from acres. The by North of the River of land added the second act, as indi- description by legal act, by in contained cated and may attached to information Exhibit, as an is about and long miles East West but six rather narrow of and of the co- lands The varying North and South. width. Eastern comprise the contiguous together and relators are territory North of this one-third, approximately, of par- description contains The information Eiver. thirty-odd co-relators. by each of the ticular land owned express extending is the of act strange provision this One from the in of lots Subdivision exclusion three Glutche’s are near center although these lots municipality, by all on sides territory by act and surrounded added arbitrary city by act. The said included within the lands appears but it explained, lots of these three exclusion lots were the information that these from the company. lumber property embraced provided that the acts Each said subject taxation liable and should be respectively therein City future indebtedness existing as for the well alleges: further information Stuart. belong- territory described as hereinbefore That the in terri- and embraced ing to the co-relators herein City of incorporated in Stuart tory attempted to mentioned, Legislature hereinbefore the Acts of the far removed every lands, instance rural are each and city life, in advantages of from conveniences municipality from the being isolated many instances or seven in some instances six being situated proper municipality, portion of said built-up from miles City of by the assessed are although the same in excess of its greatly value at a for taxation Stuart many instances excess value, to-wit: real being are taxed same and the per $1,000.00 аcre, support Govern- of Stuart municipality paying off indebtedness purpose for the ment, munici- old benefit sole for the created pality prior attempt to the to incorporate said terri- tory within the extended boundaries of said munici- pality, City the said of Stuart has made no improve- ments property whatever on said any or portion thereof by way building of sidewalks, roads, or or streets, laying-out or grading or hardsurfaeing any of streets or roads; that no sewers have been laid or water mains placed poles or placed or wires lights for electric any of said territory; improvements and that no what- ever have been made or are in contemplation by even the said municipality within territory; said that no benefits whatsoever have accrued to property said any portion any thereof, of owners said property, and probable none are or contemplated, thereby denying property said equal owners protec- tion of the laws and enjoyment of their property, denying them the benefit of resort to the Courts injuries for the done to them and their said lands the constant taxation thereof City purposes, with- probability any out the receiving benefits, and de- priving them of property their process without due law; that such taxation amounts taking of the just compensation, and confiscatory property rights of the in violation co-relators Florida; are citizens State who the said Legislature and exercising of corporate Acts thereunder Stuart functions violates of Article IX of the Constitution, 1 and 5 Sections the co-relators property of hereinbefore men- that the remotely located from built-up por- is too tioned municipality to receive there- tion benefits just cannot have a valuation as а basis of from, municipal purposes, being in- yet, assessment boundary municipality, of said such cluded within necessarily being municipal pur- property taxed thereby depriving the co-relators of their poses, con- denying rights privileges and and them re- stitutional courts, in violation of their constitutional sort to the not rights; of the co-relators is that said community part as a and cannot considered of reason located, of Stuart is wherein by St. separated municipality that it is from said fact formerly consti- and is what Harbor, Lucie River village Rio, postoffice for- of where a was tuted Government, merly States maintained the United community separate separate its school and its with corporate interests; usurpation rights, that since the territory by the privileges and over said franchises been municipality postoffice Rio has Stuart, at for the provided and mail is now abandoned service Jensen, in a munici- postoffice thereof residents north; lands on the that adjoining said pality con- territory telephone no now have of said residents pro- Stuart, but such as are City of with the nection connections, connected with are telephone vided with main- school is Jensen; separate that Town of from separate and distinct neighborhood, tained said closely Stuart, associated but of Jensen schools Tax School Special reason of schools Jensen with otherwise; that State Trustees District territory herein- residents County elections, required but are Stuart, at not vote do described before delivery special telegrams Jensen; that vote terri- of said residents delivered are letters Stuart; at Telegraph authorities Postal tory by the pro- no fire furnishes of Stuart municipality territory or any of said protection police tection no are therеof; there inhabitants leading places streets or roads to residence country the co-relators, except and the roads, same kept up City are Stuart; of the maintained territory that said and the residents thereof are within County the Commissioner’s District who lives at Jen- sen, County and the living Commissioner at Stuart re- complaints fuses to hear residents, of said but refers them County to living Jensen; the Commissioner at territory that said was included of the boundaries City the of Stuart as extended said the Acts of Legislature, against the protests wishes and over the of co-relators; these that there are but few residences improvements other territory within the herein- before belonging described to as those co-relators, but in most wild, instances said lands are unimproved, un- developed and in their natural and native condition, in many development instances unsuited for farm purposes; that the said lands are too from remote the business and residential section of municipality the of Stuart to therefrom, derive benefits are receiving whatever, no benefits either to said lands or to thereof; only the owners that the purpose of the at- tempted territory inclusion of said within the bound- City aries the of of Stuart that might was the same support City taxed to Government of of Stuart, pay off the prior indebtednesses created attempted of their inclusion and the time that were of territory; created for the benefit such nowise territory hereinbefore described as belonging to properly belong these co-relators does not com- munity comprising municipality Stuart, but thereto, remote and inaccessible therefrom is more of Jensen, and that accessible Town said terri- tory plan part not been laid out or as a has residences municipality but such few Stuart, independent thereon, built arе located were laying municipality reference to the out of Stuart.” municipal- alleged population of

It is further that the ity slightly inclusion of such has added been but only one territory. appears map from It there river, north bridge connecting territory vehicular Stuart, act, City of with the extension embraced north- running from the being bridge same northwestward projection Town of Stuart to a west corner the old river, par- of the mainland broad waters the across the dis- bridges bridge. are some with railroad These allel the the the northeast owned body from to tance the of land from lands, alleged, are remote it is so co-relators. These it could City that developed portion of the of Stuart the contemplated any improvements ben- that not have been owners said lands the accrue to would efits whatever Lying city limits. within inclusion the by reason thereof river, incorpo- south the lands of the the bulk between river, added act, north the and those first under the rated except- which, river, of the act, waters are the second the quite wide— ‍‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​​​​‌‌‌​‌​‌‌​​​​‌​​‌‌‌​​‌‍bridges, are by the crossed point ing at the average of one probably an map exhibit according to the Harbor.” designated as “Stuart width (cid:127)mile tested information as sufficiency of the Now, as to the of fact allegations inquiry, the Upon this demurrer. alleged the facts so true. That taken of course be must munici- extending the Act show that in the lands take river as to so across pal boundaries unjust, can unreasonable, arbitrary co-relators, was alleged make facts Whether hardly denied. be statute in law to show sufficient prima information facie unconstitutional, sought, be as a basis relief we will proceed now to consider.

If relator and judicial his co-relators are entitled to sort, relief of any they it must conceded сhosen that have the proper, only, and probably remedy. available See Sarasota, rel. v. State ex supra, in there which case was an very question, unsuccessful'effort raise thereon, squarely obtain a presented. decision that is now As States, was said that case: “In some of the where a municipality required is legally or allowed tax farm or rural lands within its limits at a rate from different against property assessed built-up portions in the city, remedy by injunction permitted where the same imposed tax is on outlying such receiving lands no ben- efits as do; on remedy those that such but is not available State, in this where all property municipal within the lim- its must be taxed at an 'equal and uniform rate’ and 'just valuation.’ IN, Art. Secs. 1 and Const.” State at bar should case not be with that confused class of establish, cases alter municipal where or extend exercised, directly by Legislature, boundaries but by proceedings general laws, instituted under varying regulations their nature and in the various States. In this cases, very generally class of it is may held the courts determine the power existence of the attempted to exer- be validity local authorities the the cised mode of Many of this its exercise. cases class in Mc- are reviewed edi., Quillin Corp., 309; Munic. 2nd Secs. 285 edi., to 1st 292, and in Dillon Corp., 266 to Munic. Secs. Secs. 353-357. is said in connection with While much class of cases bearing bar, on they which has the ease at directly a are not regards point question fundamental in here involved. general Thus have this State laws under we which mu- may, by following nicipalities prescribed procedure, subject ratification boundaries, to their contract extend Or, in the statute. in accordance with by an election held to tract desired boundaries, where the eases of extension voters, the registered than ten be annexed contains less may accomplished provides that same be statute election, thereof, sub without an publication ordinance tract within ject right' property owners such court, of by petition the circuit period object to limited given hearing and a accorded. which notice 1915-1918, Laws, 1927, 3048-3051, Comp. Secs. Gen. Secs. v. Or S., 1920. of Orlando R. And ease G. 532, arising Fla., 207, R., under Co., L. 39 So. lando W. & statute, the action of provision of the the last mentioned sustaining objections court in circuit preventing the annexation was affirmed. owners and proposed to objections .in that ease were the district situated; that sparsely remotely be settled and annexed was advantages way it would no and be in no benefited receive by annexation, taxes. but would burdened with additional be dealing with the direct action of here are

But we at outset that must be conceded And it Legislature. establish, alter, extend or power has generally ac- This is the municipal boundaries. contract country, whether the State throughout the cepted doctrine power in not, expressly vest the does, or does constitution necessary,” says Judge Dillon Legislature. “It line which (Dillon Corp., 343), Munic. Sec. “to draw the place people incorporated. the limits of the defines ” legislative function. If a constitutional is, us, This with recognition municipalities of this over and their abundantly necessary, boundaries were it is furnished— restriction on exercise of it as to by Section 8 of Art. 8 of our State constitu- boundaries — tion. power The existence freely is conceded. But is power unlimited, and entirely the exercise of it be- yond judicial the reach of review and all cases! weight The authority of country in this seems to answer question this in the affirmative, and to legis- hold that the power lative regard practically plenary un- limited, in the absence express constitutional restriction thereof. express We have no such restriction in our con- stitution. As was in the opinion observed course of the Sarasota, supra: in the case of State v. “There provision no of our constitution which seeks to limit or regulate Legislature power the exercise prescribing municipal boundaries.” Municipal Corporations, Ed.,

In DilloA on 5th Sec. general it is said that “the rule is that the determination municipal purely function,” boundaries is a and Section 355 reads as follows: only may Legislature originally

Not fix the corporation, may, specially limits of the but unless Constitution, subsequently annex, restrained in the contiguous authorize the of, annexation or other terri- tory, and against this without the consent and even majority persons residing remonstrance of corporation territory. in the or on the annexed And objection it is no constitutional to the exercise of this compulsory power annexation that brought corporate limits thus within will be sub- ject discharge pre-existing to taxation to a municipal which, indebtedness, since this is matter in the ab- special restriction, belongs sence of constitutional wholly determine. enlarge the boundaries of munici-

pality by contiguous territory annexation is an power create and to abol- incident to the to objection it is no pleasure; at municipalities ish absence power, in the of consti- to the exercise of territory mu- restriction, that the annexed to tutional municipal organiza- nicipality already complete has a borough, village, or other cor- city, town, tion as or by recognized laws porate form the Constitution and limita- In the absence of constitutional State. power Legislature, it is also no tion objection the valid of the that a exercise effect, municipality is, merged smaller in prаctical by larger municipality with a consolidated larger city, ques- act of of the as where the the voters popular tion of to a vote of consolidation referred territory, a provision the electors of the consolidated necessity question which almost of refers the practical larger of the determination the electors the two A consoli- bodies intended be consolidated. by express dation so effected, prohibited unless some provision State, open is not Constitution of the depriving taxpayers and electors of the attack as rights or municipality of their vested smaller under the law, either constitu- process due found in the Con- provision to effect to be tional State, provision or to be the similar stitution States. found the Constitution the United McQuillin Municipal Corporations, In Section 284 of on Ed., 2nd it is said: by Constitution, restricted

Unless may municipal only original establish the limits corporations, may change but alter the boundaries or territory directly annexing detaching or at time contiguous otherwise, dividing consolidating or cor- or, porations, may changes authorize such to be made general special law unless forbidden Con- stitution, may and this be done the consent against protest and even the the corporation, of the local authorities or the inhabitants of communities the affected. regarded purely discretionary This is as a legislative prerogative, obligations and unless the of rights contracts or vested persons of are impaired third action, such in accordance with well-established the rule, judiciary the cannot interfere. But whether municipal corporation has definite and certain bounda- ries, are, such what boundaries is matter the for courts, Legislature, determination of the and not the justice injustice and in such case the of of the action Legislature fixing in the the boundaries is involved. Legislature Thus the has the extend existing municipality limits an by annexing terri- tory thereto, although territory such no will receive incorporation benefit from in municipal return thereby imposed it, burdens and although an- territory thereby nexed rendered liable for pre- existing municipality. debts The extension of corporate limits, organization like the municipal corporations, ancillary government in sus- taining peace, convenience, and the order of those communities which are formed dense collec- tions of particular citizens in public localities. The generally is concerned may pre- scribe the terms and may conditions under they formed or bo extended. to the inequality taxation,

As produced by when an extension of boundaries, which States has some been recognized as a independent basis for relief validity of per se, appears the extension following in Sec. Cooley 4th edi. of on Taxation:

A has presented different case been other some having been extended so as to States. boundaries their parties who insisted that embrace lands of merely, and would premises agricultural lands were par- city government, receive no from the such benefit prayed courts, and sought protection of ties injunction imposition upon them of to restrain the they chargeable been tax excess of would what have to embrace with had boundaries not been extended Legis- that the them. It is to observed such cases lature, fix authority had which alone to determine and proper municipal the bounds of division the taxing districts, pro- had State and also to establish the so, fixing with- ceeded to do and in the boundaries any provision in taxation out discrimination the thеm, that property within had determined in effect ought no to be such discrimination should or made. subject the Constitu- whole was one committed exclusively judgment tion discretion of the and legis- members, in cases as other Legislature, whose in their own inquiry into the facts lation, make would question No own reasons. way, upon their and act legislative jurisdiction complete the be made of could unfair, and if action led case, and was over the seems difficult unjust consequences, it unequal successfully upon which it could suggest ground judicial that would not warrant in courts assailed par- in which every in legislative action case review inequality. injustice Nevertheless complain ties considered themselves the courts have cases in some in order to deter- into the inquiring facts, warranted of mu- judgment extension in their mine whether nicipal fairly warranted; having boundaries was not, reached and the the conclusion it was exten- purpose subjecting sion was made for taxa- adjacent tion property not that would receive the ben- municipal government efits of and was not fact property, they urban have protect undertaken to brought unfairly in, against owners of thus unequal legislation taxation to which would- expose doing they them. In this have not assumed to nullify extending municipal action in limits, they modify but have undertaken to and relieve against consequence, its do express and to ground legis- that the motive which has influenced legitimate. lation was not point As the in one is stated case, it palpable perversion to tax justifies judicial interference. by very judges, decisions are made able

Some these always opinions highest are entitled to the re- whose spect ; but it seems difficult to harmonize them with principles governing the law of conceded taxation. For, They question legislation being 1. do not as ex- legislative authority, might cess of be done where they purpose public; are voted for a taxes but legislation stand, only leave the interfere to qualify ground its on the effect, has been adopted improper grounds operate on un- will equally. inquiry 2. This done on an into facts, is the.judicial and a of substitution conclusion subject judicial; on subject, not at all a city proper limits of too—the which extension — persons are certain to differ widely, and where an in- quiry judicial into the facts after method of an ex- usually satisfactory amination of is much witnesses less personal knowledge investigation than that

91 legislators supposed possess to or to make. This is are certainly laying applied be down a rule which cannot being judiciary generally; is admitted that the has general authority injustice legis- no of to correct the taxation; weight lative action in matters of and the authority clearly that, regards cases, of these legislature determination of the But the conclusive. legislature authority bring municipality no into a has territory contiguous attempt it and the to do so purpose increasing may of the local revenue treated as void. support

Numerous eases are cited text these writers propositions announced. leading Kelly One of the v. Pittsburgh, cases cited is 104 Ed., Kelly S.,U. Law 658. James was owner of farming dairy purposes acres land devoted only. Pittsburgh The limits were extended so large country as to embrace a composed tract of farm Kelly’s lands. land was surrounded on all other sides farm except parcel twenty lands off acres laid into lots. lay city lay other farm lands. It and the land, Between his sewers, gas pipes, lights, police beats distant from and water city Brought into No to it. apparatus. and fire streets led city consеnt, on a without his it was taxed $2117.00 alone, city purposes while the $244,000.00 for valuation of per acre, a farm was yearly $10.00 value as productive equity State filed a bill He for the whole. $800.00 taxing property for city from his court restrain into property was taken alleged his purposes, increasing and without its revenues purpose of city for the trial any benefits to him. The extending pretext against appealed him and he case court decided court affirmed the de- This of the State. Supreme Court joined by court, Agnew, cree of the lower Chief Justice filing Sterrett, vigorous dissenting opinion. a Justice .Supreme case was then carried the Court the United high on writ of error. This tribunal also found States Kelly, affirming judgment of against Supreme the the State Supreme In federal opinion Court. its the Court held that only argument Court could consider was that regard proceeding against plaintiff’s to the taxes assessed deprived him of process land his without due discussing In law. the contention that the in- State law Court, volved was itself in conflict with constitution, speaking through Miller, Mr. Justice said:

It is rightfully not denied that the could enlarge boundary Pittsburgh so as to include land. If the defendant’s this were de- nied, we unable are to see how such denial be could sustained. a portion What shall be within State governed limits a its its authorities and always subject laws has considered a proper been to be legislation. thickly sparsely ITow how the terri- tory organized city, must be settled so into be must one of legis- matters within discretion of the body. territory governed lative Whether its shall be purpose county, city for local township organ- ization, is most ordinary subjects one usual and legislation. of State urged, however, force, though

It is with much character, "land of this which its owner land has lots, laid off into using town but which he insists on agricultural land, through which no streets run or are used, be, Legislature, subjected cannot even city, tax, gas the taxes of a water tax, street tax, and others of similar character. The reason for said to that such taxes are benefit of city property those in a who within the limits own improvements nse, might use if such and who them they choose, reaps while land such the owner of this no Ken- higher benefit. Cases are cited from the courts of tucky principle asserted, and Iowa where this city where courts farm a those have held that lands in subject are ordinary city not taxes. duty inquire

It is part grounds no our into the ques- on which They those courts decided. are have tions which between arise the citizens of States those city authorities, and their own and afford no rule for construing the Constitution of United States. opinion goes say The then that possible on to it is not adjust precise with accuracy indi- the amount which each community vidual in a civil shall to sustain contribute organization. public pur- That taxes were levied poses and judicially say that the court could that Mr. not Kelly was city organization. benefit from That the city schools children; would that the receive his streets, penetrating farm, it; while his lead to waterworks probably day, would him some and that reach protection police. an had interest afforded he “Clearly,” court, says the are “these matters detail legislative discretion, therefore, within the law-making body jurisdiction par- whose in the within cases, say, ties live. This court in such however cannot burden, unequal tax hardship or great the taking purposes for such collected v. of law.” Clark process due See also taxpayer without 392. City, 114, Law Kansas 176 U. S. edi. Brown, R., 162, was 53 N. J. Law case v. of State resisted. It was village a tax on farm land was

one where occupied ter- village only one-third of the asserted that the corрorate limits and that ritory included ‍‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​​​​‌‌‌​‌​‌‌​​​​‌​​‌‌‌​​‌‍within the very In farm obtained no benefits. the course lands opinion, court said: able respect immunity,

In this claim are there number of in Iowa, Kentucky eases the courts of invalidity Nebraska in which the of such a tax is ad- judged. The cases, by injunction courts in these or process, stepped other in pro- have arrested ceedings collect, ground on taking that it was private property public purposes compen- ; sation that it was confiscation and not taxation. Ex-

cept in the mentioned, courts of the States the doctrine promulgated thus support has no jurisprudence country. power of this Legislature The of the to fix the territorial municipal limits of corporations has never been doubted; indeed, questioned it is not in the cases power above noted. The of the levying authorize the public purpose taxes for all the municipality within the in- is deed denied in cases, those but nowhere else. ground upon was,

The which the court went that no assessed, party land, by benefit accrued to so his that, They imported reason of was non-assessable. into levy 'general question of a tax benefits to the taxpayer. benefited, If assessed; he was he could be otherwise, not. perceived

It if matter of benefits to the taxpayer judicial problem, becomes a the courts can- halt in dealing gen- at the line of no benefits with logical judicial eral tax levies. result of a inter- boundary vention at all supervision carries the into degrees all Is benefit. he benefited to the amount not, of the tax levied? If benefitted, how much is he proportional and a abatement? inquiry

Tbe of such a would be admission entirely novel, and would overwhelm the courts with duty of tax revision. spe-

Actual benefit lies at foundation of a valid improvements. cial for locаl In the case assessment general governmental purposes taxation for benefit presumed accrue to But it accrue all. does not equal degree. to each manner one the same Inequality arising is the rule out of inevitable va- personal riations of environment. as- Hundreds are expenses lights sessed in a for the of electric who gas have to content nothing; themselves with public parks, opposite which are located on the side city, practically and are unreachable for the purposes recreation, police, and for when such an rarely Many officer is visible. for the levies support municipal of these and similar features of government inequitable levy are as as the of urban property. taxes rural It has never been success- fully urged that, inequality return, because of the the tax was abatable. enjoined

The courts which have the collection of upon agricultural taxes municipal land assessed for purposes they have not intimated that would enterain jurisdiction of cases of taxation where there some was adequate but not an benefit. Waco, Tex., 635,

In the of Norris v. it was held case that, concerned, power far as the itself is its so absolute, generally recognized in the absence of to directly controlling mat- provision some constitutional territory a mu- ter. That shall be embraced wihin what by question to be determined nicipality political is a judiciary attempt by an making power; and that law legislative to revise usurpation action would be a power. quotations

It is believed that the give above a fair com- pendium of the reasoning underlying the numerous cases supporting majority view that the in regard is absolute and unlimited, subject and not to judicial They review. from high come suсh sources as to compel respectful forcible, consideration. per- But, suasive and even brilliant as some of arguments these majority behalf of are, view thoughtful perusal, their especially at, the conclusion something arrived leaves be desired. suppress One cannot thought that if this view be accepted qualification and followed its logical conclusion, may what legislature by way do, of arbitrary municipal boundaries, extension of place major part of the burden of support taxation to a munici- pality upon property owners whose prop- lands and other erty are so far removed from range municipal local advantages completely conveniences and as to repeal pretext of fully benefit therefrom. And if this doctrine be what becomes of those adopted, rights sacred and basic person and property, which have deep their roots in the of America people sought have past and which to safe- rights which have been guard the bills embedded constitutions, and to some extent in all their the Fed- State rights, constitution itself—inalienable some eral of which Magna Carta, long run and which have back been existing guarantees cherished as out chief of individual liberty private property, heritage every and the natural of citizen? And what free American becomes of our boasted system in government our of claim that nowhere is there arbitrary place absolute, despotic power a provided ? least, government place that there is our no At arbitrary of unlimited power, the exercise of its departments, way rough over, such a as run shod or to upon, rights encroach those vital citizen which have deliberately been people, retained and reserved tо the preserved our guarantees constitutional from invasion or impairment by governmental power any kind, whether legislative, judicial. country executive or of this courts very have been careful not to encroach the domain legislative departments. highly executive It is important they sedulously that' continue to follow this course and keep strictly sphere. proper within their own See Jackson Co., Lumber R., v. Walton 116 So. County, importance, high But 771, 789. the first and their it duty, function, proper est and within their to maintain th« integrity of they the constitutions have sworn to defend and Jurists, support. statesmen, might as well remember well significant speak Calhoun, admonition of John C. who “Of few nations ing Senate, the United States said: adopt constitution, a who have been so fortunate as wise long preserve one. It have had the wisdom still fewer liberty. years than After preserve harder to to obtain prosperity, tenure which it is held is but too often ’’ forgotten. municipal legislative power If it be true that over unlimited, in of a boundaries is absolute and the absence specific provision in as to and when the constitution how exercised, open ruthless should be the door is for harsh and rights speaking individual we have been invasions those of, remedy. suppose, and without us for instance that Let say population a town of a thousand should make extensive municipal improvements resulting in burdensome taxes, procure taking should then act within its cor- strip running porate limits a narrow land out to and community embracing of half a dozen families two or family owning cultivating large three miles each away, entirely orange groves, beyond located and valuable municipal benefits, and impose reach of half the tax thus remotely burden of the on town such groves, located could arbitrary such oppressive act, an invading so located property rights, yet held valid? And it would be be so if held, majority accepted qualifica- be view without suppose tions. sugar Or a three million dollar mill should be Everglades, built in or five ten miles ofWest the cor- porate limits of one some cities oh the lower east coast, separated therefrom lahds, vacant and far re- any city moved from benefits; city and the should promptly passage secure extending of an act its boundaries taking strip in a of land to run so as out to and surround the purpose mill, subjecting for the taxes, sole it to would even these uphold validity authorities of such an act? not, And if what then becomes of the unlimited theory ?

These extreme generalization show instances this cannot accepted qualifications. be Some of the quoted authorities from exemplify Thus, themselves this. Dillon’s Munic. Corp. says Sec. legislative that the power over the geographical municipalities limits of “is very unlimited,” except broad in fact pro- where the visions of the charter would contravene constitutional lim- itations, express implied.” 108, id., And in Sec. it supremacy said: “The authority over not, corporations however, respects all un- municipal sought limited; the limitations must either in the but Constitution; found, there except of State National implication, they fair do not exist.” And terms from quotation Cooley at end of Taxation will on appears: noted that sentence “But have been authority bring municipality has no into territory attempt contiguous it and to do so for purpose increasing municipal of may the revenues the ’’ Now, -legislative as void. power treated if the over the unlimited, “contiguous” matter be why territory, limit it to especially Legislature may technically easily as the make it contiguous embracing intervening strip of also a the area? theory power passage

This of unlimited the of statutes establishing extending or municipal correct, boundaries, if exception would make general rule, that, it an and too, giving any exception. sufficient reason for such general is Legislature supreme rule that is in the the legislative the field, powerful which is most gov- branch of ernment, long it so as not any provisions does violate the of organic the justifiable law. There is to our minds no of exception any legislation of all-pervasive class from this and fundamental principle. Perhaps disposition of many designate fixing municipal able courts to boun- exception an undeniably daries as due fact that this sphere legislative falls within power, power ‘‘ ’’ boundary line, alone can being foreign draw a judicial to either departments, or and executive many further fact that in cases the of such establishment matters, line depends only fact, a so much not of mere opinion but of judgment, and been the courts have ever loath substitute judgments opinions their for those Legislature, rarely, and never, so, except do in those contrary palpably cases where the conclusion is so clear absolutely require judicial unmistakable as to interposi- integrity tion maintain the fundamental law. As instance, a question presented recent was to this Court as to whether the prove construction of certain roads would benefit county sufficient a to permit county as taxa- county tion purpose therefor a within meaning holding the Constitution. “the While can- arbitrarily and without reason defeat plain intent language of the Constitution' authorizing county impose to assess taxes for purpose legal no has ’’ practical county relation purpose, whatever to was observed: “But determination en- great and, titled to weight, is, Roads, case of from very the nature of subject, the to be aside; difficult set question the particular whether a road will or will not prove a substantial county benefit to the determi- one the nation of usually opinion involves matters of judgment.” Jackson County, Lumber Co. v. Walton 771, 782, R. So. So, 95 Fla. 632. also, legislatively established railroad have rates been aside set courts the upon ground that the on they the facts shown would neces- sarily result in the confiscation of railroad property. the might Instances multiplied. The courts in some have gone instances so far legislation as to annul citing any specific violation of organic law, the ground the that it arbitrary was so and unjust in its character as to constitute a flagrant power. abuse the TIow- ever, the writer is opinion analysis the that an of most of this latter class of cases will show what courts had in mind was under provisions Constitu- objectionable legislation tion the constituted an abuse of it legislative power express, because run counter certain necessarily implied, provision Constitution, or of the or Legislature of the power transcended the Consti- under the principle tution. is well Because settled that courts right legislation merely no have to hold invalid because the unwise, impolitic unjust, courts consider it or even arbi- trary long oppressive, so does not contravene the .express implied provisions Constitution. If the legislation power courts to veto or revise assumed be- Legislature power cause had abused the committed

101. merely laws, passing hands unfair its unwise and but- laws, not unconstitutional it would indeed constitute usurpation power part on war- the courts without Constitution, judicial rant in the and one which branch has ever been careful to avoid. appears

It thus to us that the contention that the Legislature particular respect in this unlimited beyond judicial review, specific unless there is some expressly provision regulating of the constitution or re- straining Legislature the action exercise of particular power, Regardless of ab- is unsound. specific provision, great sence of such a while latitude must yet in such if the matters, be allowed the arbitrary, boundary palpably constitutes extension act unnecessary, flagrant personal prop- invasion of erty rights clearly guaranteed provisions other subject judicial constitution, such action is as much re- legislation. may It view as other class of be true if line only line,” can “draw the but aside, can it unconstitutional, drawn the courts set as be Legislature to draw another and valid leaving it to the judicial adjudication difficulty if of line so wills. The it many various factors eases, a class of and the and of such constitutionality into determination of the which enter difficulty instance legislation of such —such judicially reviewing exercise of the undoubted establishing municipal Legislature in boundaries of the reasonably only present but accommodate not antici: municipality not growing pated future needs of —must in those enforcing the constitution deter the courts from clearly be- eases, though they may be, is, where it rare disregarded. yond doubt, violated and all reasonable Primacy is accorded position our State Constitution immediately Rights. first, Declaration of It comes

102 preamble. Declarations, These comprising

after 24 short but sections, following incisive include provisions: Section 1. “All equal men are law, before the and have certain rights, among inalienable which are those of en- joying defending acquiring, life and liberty, possess- ing protecting property, pursuing happiness and obtaining safety.” (Here implied we guarantee have an equal protection of thе laws, at least as to the class rights mentioned, expressly similar to that given in the Fourteenth Amendment to the Federal Constitution. See L. Lakeland, A. C. v. 685). 115 R. So. text In 2 “government Section it is said that is instituted for protection, security and benefit of the citizens.” Sec- tion 4. “All open, courts in this shall State be so that every any injury him goods, citizen for done in his lands, person reputation remedy by or shall have due course right justice law, and shall be administered without delay.” 12 sale, provides per- denial or Section that “No life, deprived liberty be son—shall without process law; private property due nor shall be taken just compensation.” guarantees And Section right people persons, “the to be secure their against houses, papers and effects unreasonable seizures and declarations close with searches.” The the admonition that, rights “This enumeration of shall Section not deny impair people.” others retained construed significant It is that our Constitution commences thus things government specifying those which the State must do, specifying things may do. before certain Rights Declarations omitted as well as These of —those quoted, much, spirit those above have cost and breathe the sturdy philosophy of that and of individualism self-reliant system supports govern- which underlies and our entire of plants pro- ment. No race of hot-house could ever have compelled recognition duced and of such a stalwart set principles, of basic preserve and no such race can them. They say arbitrary power, autocratic from what- quarter may ever official it advance to invade vital these rights personal liberty private property, “Thusfar ’’ shalt thou but' come, They no further. constitute a limi- powers tation departments each and all the the State Governmеnt. department, Thus no not even the legislative, has system gov- unlimited under our extent, ernment. These declarations even limit to some tremendous, exercise but inherent and well estab- lished, powers Cooley of taxation and eminent domain. Lim., 533-602; 1108-1222; 1026-1039; Const. 8th Ed. 1062-3. Cooley Ed., 67, 4th Taxation, 58, 69, 131, 143, 144, on Secs. 247-9, 325. Dallas, 386,

In v. Bull, Ed., 648, Calder 1 Law decided 1798, Supreme Court States, speaking United through Chase, Mr. Justice said: “There are acts which Federal, State, Legislature do, cannot without ex- ceeding authority. their There are certain vital principles in our Republican free Governments which will determine apparent overrule an flagrant legislative abuse ‍‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​​​​‌‌‌​‌​‌‌​​​​‌​​‌‌‌​​‌‍of injustice by law; positive authorize manifest as to power; away security personal private prop- or to take government erty, protection whereof the was estab- (for An I call lished. act cannot it law) contrary great principles to the first of the Social rightful Compact, legis- cannot be considered exercise of authority.” lative Cooley Lim.,

In on p. 264, Const. it is remarked that while discretion cannot courts, yet controlled clearly its action is evasive, where, pre “Where under authority, tense of a lawful it has assumed to exercise one unlawful,” may be. And on again, page may it is said:'‘ Everything under name of done be necessarily taxation tax; may is not happen a and it that an oppressive by imposed burden government, when it carefully comes to be scrutinized, prove, will instead of a tax, to be an unlawful property, confiscation of unwar ’’ by any ranted principle government. constitutional And p. on 1038, in discussing placed a burden on State single a district which was in fact a State it is obligation, 1‘ upon said: The burden must be those it borne whom justly rests, power in recognize and to State a to com pel single a discharge somе district assume State recognize debt would be to its to make an obnoxious district or an obnoxious class bear the burden of whole An act to that effect would not taxa Government. be State any legitimate legis tion, nor would it be exercise that, authority. may act, And said of such an lative it be operate pay far as it would to make those who would so pay proportion more than their of the obligation, tolls State private benefit taking property their effect it was to all the and was obnoxious State, of other citizens private appropriation against the objections any other case.” could exist private purposes which v. Morford quotation from the Iowa case of Then followed then con presently discuss. text Unger, which we wil : tinues impose legislature assumes to

When, therefore, tax, form of a upon citizen pecuniary burden always First, whether the may raised: questions two may properly burden be considered purpose such indicated; grounds and sec- on above public one which the burden is ond, public, if then whether properly the district should be borne questions If of these is answered imposed. either negative, Legislature in the must held have to be authority assumed an general not conferred in the grant and which is un- power, therefore power taxation,” constitutional and void. “The says an a writer, great governmental eminent “is at- very wisely tribute with which courts have shown unwillingness interfere; abused, extreme but if abuse should share the fate of all usurpations.” other page And on 1062-3 of the same work learned author cites approval holding with evident Wells v.

Weston, 22 denying Mo. power Legislature 384, subject lying city real outside the limits of a estate city Kentucky taxation for holdings and the purposes, declaring Iowa courts competent that it is for the not Legislature to city increase limits of a in order to in- farming required clude therein lands not for streets houses, purpose city where the is to increase the revenues (Thus Cooley taxation. on Constitutional Limitations appears quoted to limit also the statement first hereinabove Cooley from Taxation.) on Tyler, Fla., 14, Co., in Consolidated Land v. 88

This court that, Legislature an under act of the 280, R. held 101 So. bridge district, tax the collection of taxes creating special a appellants, although therein, included against the lands appeared they lo where it were so be enjoined, could conceivably they any way could bene cated unjustly building of the bridge, fited were arbitrarily embraced within district violation citing rights; Special v. & organic property Willis Road Fla., 495; v. District, 74 So. R. Paul Bros. Bridge 446, 73 Fla., 687; Myles Etc., 706, 83 92 R. Long Branch, Dist., So. Commissioners, Sup. 239 478, v. Board of U. Co., S. Salt Ed., 392, and other cases. While there R. 60 Law Ct. special between levied a certain distinctions are taxes particular district created for the construction im- local provement by municipality general and those levied a municipal governmental purposes persons and which all yet within the must municipality pay, organization, itself local general its while taxation, city is, within however, city, local, pur- and hence poses. There is therefore no sound reason which would deny unduly extend the of special taxing boundaries property district to cover conceivably which not by special could be benefited im- provement, yet power unduly admit to extend municipal subject boundaries so as to to taxes local city purposes property entirely beyond so located as to be range city benefits, of arbitrarily imposing thus on such separate possibly locality heavy remote burdens without cоmpensating advantages kind, of in derogation of the property rights of pro- same class constitutional which are legislature fixing tected from invasion the limits taxing special of a district. 8, says that,

While our Constitution Section 8 of Art. Legislature power “The shall have to establish and to provide municipalities, abolish for their government, to prescribe jurisdiction powers, their and to alter or any time,” decisions, amend the same at our far from sub- power scribing to the unlimited theory, recognized have power that in the exercise of legislature is not au- provisions other of constitution, violate ex- thorized MacGuyer Tampa, implied. v. 89 138, Fla. pressed or 103 City Lakeland, v. 61 418; 508, Brown Fla. R. 54 So. So. Bowden, v. 67 City of Jacksonville Fla. 716; 181, 64 R. So. Tampa Prince, v. 63 769; 387, Fla. 58 R. So. R. Johns, v. 92 Fla. 187, rel 542; ex 228; State So. R. Sarasota, 92 Fla. City v. 109 So. R. 473. State In case, held, it was MacGuyer and correctly so, that un- territory can this Section the annex an der existing municipality the consent of its inhabi- provision tants, organic unless some other law is vio- case, In the lated enactment. Sarasota it was said harmony that this must exercised “in with, of,” provisions in violation other not this constitu- tion, such as those contained certain sections of the dec- rights, “great laration of but latitude must be ac- corded to the discretion in the exercise of the practically plenary power expressly granted Section 8 of Article 8.” Kelly Pittsburgh,

The case of v. supra, decided no more than that the consequent annexation and taxation shown in that deprive party case did property of his with process law, due out under the 14th amendment Federal Constitution. Amendment, The 5th pro hibits the taking private public use without just compensation, considered, was not provision for that in the National long Constitution had been held to be a re upon striction the Federal only, Government and not However, seen, as we have pro States. we have such Constitution, in our State which does vision limit legislative power. Some courts and text State’s writers provision only applies such a have held that to appro right under private property priation eminent including court, Others, given this have domain. it a significance and a broader greater effect. The language of limit provision operation does its not particular taking, courts applied mode and some have it to the ar bitrary appropriation public private use of property in money by the the form of method and under guise facts taxation, taxation where under the was legally not constitutionally justifiable. This applied court has provision to save from threatened confiscation a railroad

108 by of the reduction of rates

company’s property because could an that the railroad to such extent the Commission v. operation. P. & A. R. Co. pay expenses of See citing v. Farmers 833, Fla. R. Stone State, 25 So. 309, 29 Law Ed. 636. It & S. Co., Loan Trust U. provisions should be unconstitutional would seem such principle the end that the given a liberal construction to applied to conditions preserved announced should be meaning and they arise, in the essential as accordance with fairly reasonably language used, inter- intent of the Cooley “Taxation and eminent has said: Judge preted. substantially foundation, on same indeed, rest domain, private property public for taking of implies the as each compensation is differ- made; but the compensation on use money for the taxation takes eases. When in the two ent receive, receives, supposed or is taxpayer use, the public government protection in the just compensation his liberty property, and inсrease life, to his affords by gov- the use to which the possessions of his in the value money tax, raised and either of applies the ernment ’’ support the burden. will these benefits general presumptive as to benefits of a principle This State, only applies general taxation nature not imposed municipality general taxes also to the but boundaries, all within city purposes on its general lawfully constitutionally boundaries are es- where such admitted also that such situation It must be tablished. adjustment of tax precise on each indi- can be no there proportion to the taxpayer in exact benefits re- vidual cases, inequality of tax In such burdens are to ceived. inevitable, unavoidable and extent some considerable judicial ground no relief. a rule afford in by Cooley, quoted: is said one sections As equality equality. constitutional is Perfect “Practical equality again in has been said and taxation time time 259, impossible again (Sec. be and unattainable.” And Cooley’s says: Tax.) he “Yet there are where there cases glaring inequality is such intentional or otherwise, as to ’’ clearly equality uniformity violate the and rule. And in 260, requirement Section equality is said: “The uniformity of taxation taxation, relates to the rate of valuation for taxation, territorial equality, according one subject the inclusion of all view, as the taxation.” adds, 'And he in Section that “it not is necessary that arising the benefits therefrom should en- be joyed by in people degree, all like nor that each one of the ’’ people participate should particular in each benefit.

All this is admitted. But much that is on sub- said ject by the advocates of power, unlimited mark, beside the inequality and confuses individual with inequality. territorial prac- The mere fact that it is not tically possible inequalitiеs to avoid some in burdens and benefits taxpayers legitimate as between the within the city, bounds of a benefit, where all receive at least some arbitrarily in upholding ex- no reason in large as to take tending limits so district all, benefited at at least territory will not be which Purely speculative shadowy way. bene- any substantial pretext to no more than a mere for arbi- amount which fits trary are not to considered. action, that within the boundaries a munici- admitted It is fairly drawn, practically impos- how it is no matter pality, inequality burdens, but such cases avoid some sible property are and their at least inhabitants within all the receive, municipal benefits some range of, sort, very practical presumption sensible is the and such refuse to interfere And it courts must be may there exist such cases some un- also, admitted degree avoidable of inequality territorial indenta —some agricultural tions of or rural lands here and across there municipal boundary and inside the of lines lines, necessity provide must be drawn so as degree to some of symmetry regularity and shape and of contour city and allow reasonably some latitude for its anticipated growth. Common must used in sense be such matters. It is every case, even of inequality, territorial or even the absence of present actual benefits, territorial which would authorize interposition where, But courts. as in the case made herein, the information filed appears there gross a glaring inequality sudden, territorial un —a municipal reasonable and wholesale extension boundaries large many as to in a so take area times size city original, real, any municipal benefit —without contemplated, yet actual or thereto, subjecting territory past taxation for present to as well as and future city indebtedness and other purposes, a situa different squarely presented. says tion an act,” “Such Thomas J., Kentucky A. C. in the Marshall, Cheaney case v. 330, 347, “though on its Hoosier, Monroe, simply 9 B. face town, presumptively limits of extending legiti purpose, reality would mate exercise facts, nothing applied to the more less than an when authority to tax land the town to a certain distance limits, money effect outside its take use compensation for its own him.” proprietor very opinion, in this able with Elsewhere reference powers as territory to taxation and the where operate, it is said: it shall therefore, would,

It be a task of extreme delicacy, judiciary to decide upon its judg- own mere respect ment, particulars with to, referred the limits of the Legislature has exceeded the And discretionary invested. power with which is a right make such deci- greatly our to we should doubt power any legislative in attaches sion in which the case any extent, in constitution itself, to if there be not the consideration, in some limit clause now under only limit can con- That discretion. may in be made between what sist the discrimination to tax, a and for plausibility reasonable be called with may objects of the-taxa- which it be assumed that forming just a regarded tion are as tax, compensation, not a palpably and that which is form, tax, in other but is under form of a or some private use of or taking property others equality compensation. Exact public, without especially in public the distribution of burthens cannot local, perhaps such are is unattainable and as to. There must form the test the distinction referred equality in palpable departure a from flagrant be upon persons property or imposed the burthen palpable persons or it must be contribute, to bound subjected to a local burthen property are their or they others, purposes in which or for benefit are, they therefore, not which no and to interest, have in must be one The case contribute. to bound justly blush, will be first power at operation which private property with- taking of be the pronounced apparent it is that the in which compensation, out any the interest view to imposed burthen objects accomplished be in individual under what form the matter no be so, it'. If it it be the form of exercised, whether professedly regulation of local authorizing or a tax laying or subjection in boundaries, result which divisions taxes, local operation and whether the appropriate be to property individuals, one or more without their consent, to general the use of the public, or local private the use of other or of single individuals regarded the case must individual, be as one coming prohibition clause, within contained or the impotent protection constitution is for the of indivdual rights from aggression, flag- however, rant, may provided made them, it be done under color recognized of some power. We are prepared not to that concede it is important. thus But while we are disposed to consider this clause of the being constitution sufficiently as comprehensive t'o form a against flagrant barrier outrage of palpable wrong in taking property any power under possessed by the it Legislature, is too indefinite in its character protection every seeming to afford case of hardship injustice, judicial or or to authorize a tribunal in- quire operation minute into the imposing laws authorizing regulating taxes, or the boundaries of jurisdictions, local and to operation arrest their in every may case which Court find inequal- some ity consequent oppression. and The pal- case must be pable injury and the flagrant, authorize the Court, ground on the of this clause, to interfere with the ex- power ercise of a important so and so indefinite as that of taxation legislative department.” from, quoted case of just The v. case Morford Iowa, 82, Unger, probably leading are cases on this constitutionality involved The last cited case subject. extending the limits of the of Muscatine an act one west, and two miles to north and as the east mile to so exclusively farming purposes. land used to include provision pro- void conflict with- the act was held because hibiting taking private compensa- tion. In course opinion of a well considered Stock- ton, J., it was said:

If such flagrant there be palpable departure equity, from imposed; burden imposed if it be others, for the benefit or for purposes in which those objecting have interest, are, no therefore, contribute, bound to is it no matter in what form the power is unequal levy exercised—whether in the of the tax, regulation or in the of the boundaries of local government, which subjecting* party results in un- justly regarded to local taxes it coming must prohibition within designed the Constitution protect private rights against aggression, however made, recognized under whether the color or not. urged by plaintiff, farm, It is that his sought brought to be jurisdiction within the city, agricultural land; from is one mile boundary city, the old same distance city lots, from lands laid into out used or needed city purposes; can no from he derive benefit municipal government over him the extension the him to property; subjecting his and that act and city council, ben- will of and for its taxation at the the private ‍‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​​​​‌‌‌​‌​‌‌​​​​‌​​‌‌‌​​‌‍property of the efit, appropriation his is an compensation city, or benefit use in return. accruing to him government, our operation and of the framework

In rights is protection vested says Sedgwick, of Mr. the obtained. The object sought to practical be great the sys- formidable, our being most legislative power the legis- against guard the chiefly the citizen tem aims to majority, of a against power protect him lative —to unjust action The unjust law. shape an taldng of us, likely shape most take government of with property. government, upon rights of All of attacks life, liberty indeed, protection itself into resolves liberty, in fortunate con- property. our arid Life likely injuriously dition, are, however, to be little body politic. Property is action of the affected * * * question very differently situated. The con- every day becoming of more with taxation are nected authority importance. taxing pressing and more is, all, but one arm of tremendous after domain, which, far as uncon- eminent at foot so trolled, every prostrate; and conse- citizen lies decision, engine in quence leaving the earlier legislative authority, seems hands unrestrained power, jealousy awakened conservative have our long never breast of which dormant lies people. is, that Constitu- Certain it the more recent decisions, a tions, judicial show more recent power to disposition taxing not to abandon fluctuating ill-regulated despotic often will of our hasty legislation.” Sedgwick Con- on State and Law, 673. stitutional town, so as a of the limits of

The extension enlargement, as manifested its actual to include legitimate ex- is to be deemed population, houses unreason- An indefinite or legislative power. ercise farms at lands and to embrace so as extension, able does not rest government, local from distance although may be a deli- And authority. the same duty judiciary in- difficult, for the as a well cate, аs strictly are limits but there doubt have no we terpose, go. cannot It legislative discretion beyond which may reached; injustice every case of is not judicial every will authorize a case which it is inquire operation of into tbe minute laws tribunal taxes, defining ju- or local imposing the boundaries of risdictions. extension of the limits of the local greater authority, may some cases be than is neces- sary adjacent territory to include the population, or city lots, a being presented, laid out into case courts would apply be called scrutiny practical nice or exact as operation. to its It be flagrant must a case of injustice palpable wrong, amounting taking private property, compensation without such in return taxpayer as the ’’ liberty is at equivalent to consider a fair for the tax. In Daniels, v. Utah 288, Utah 5 L. R. A. an act legislature territorial extending corporate limits was held to have violated the 5th Amendment to the Federal very Constitution. In a lucid treatment subject, of this the conclusion is reached that: “A law authorizing the municipal asessment of taxes for purposes upon lands or occupants beyond their located range of municipal ben- not a rightful subject efits is legislation; that taxation city purposes should be within by the bounds indicated its streets buildings, alleys, its or or public other im- adjacent contiguous provements districts so situated expectation as to authorize reasonable they will be improvements city benefited protected police; its no outside district should be included when it is apparent palpable that the benefits of the only it will such as will be received other districts not included, such will be common to all neighboring ’’ communities. dissenting

In the opinion able of Chief Justice Agnew, Kelly Pittsburgh, v. supra, it was said: 116 Legislature can, a extension of

If the mere city boundary, to tax- farm for authorize the lands might, extension, di- city it purely purposes, city, farms, given lines, all within outside rect city Thus, get rid of that when we pay to these taxes. thought which confounds extension confusion of taxation, perceive that boundary and we power appli- pay city lands to levies laid on mere farm taxes nothing more only built-up city, to or true is cable city farmers for the benefit of the than an order to im- money A residents; taking pay it is to palpably use of B. This is provements made for the flagrantly unjust, against common therefore right. compel If itself farmers cannot city pay purely purposes local taxes for they share, have no it is clear cannot authorize the city directly. An indirectly to do what it cannot do order, boundary, upon with or without extension of pay a certain class taxes for local benefits conferred others, wholly is power pay on different from a general government. tax for support The latter every is a to which citizen submits State general himself consideration of the benefits derived government. former, But as it is well from City of Omaha, in Bradshaw v. The 1 Nebraska said, object is to make owners farms di- expense supporting municipal govern- vide the it; that those who need ment with the true levy built-up part; while the of taxes on farms is to confiscate outside the benefit of those city. See, also, Taylor true Porter, v. within James, 11 140; Holden v. Hill Mass. 396. Legislature power clear to divide the local State, government, for convenient counties, into townships, boroughs, etc., conferring each cities, on autonomy. doing powers appropriate But in this the adapted conferred be to the ends accom- must to be by large plished each. A sound and discretion is nec- essarily adaption powers. exercised in this of But it equally powers is clear that the conferred must have appropriateness proposed. reasonable to the end inviolability of right private of property boundary and natural of the .power has already been enforced in this State in of case Washington Avenue, 19 Smith, 363, P. F. in these “When, therefore, words: the Constitution declares in the ninth article that among the inherent and inde- rights of is feasible acquiring, possessing men of protecting property, people that the shall secure be possessions in their from unreasonable searches and seizures; that no one can be of deprived un- by judgment peers less of his land; the law or of the that no man’s property shall taken or applied be public use just without compensation being made; that injury every goods man for an or his lands shall law, remedy by have due course and right jus- of sale, delay, tice administered or denial law impairing made, that no shall contracts be people against guard transgressions when the of the high powers delegated by them declared that all have rights excepted general are powers gov- these out of ernment, and inviolate, they shall forever remain safety their stamped right private own upon the property an inviolability luhich cannot be frittered by away verbal separate clause, criticism on each nor fagot stick, united broken stick until all its strength gone. right There is clear indefeasible property, guarding against the clauses followed transgressions, aegis that covers it with an specific agcdnst unjust, pal- unreasonable and all protection exactions, unequal pretext; under name or pably sanctity incompatible taxing power, with is this nor domain, good that of eminent where may imposed propertj* people burdens be whole power I admit to tаx unbounded taken. Constitution; may any express limit that it exigency. I public full extent exercised do- differs from eminent concede that it thought compensation by way no main, and has applies public for that which it takes return purpose than benefit the good, all derive from further nevertheless, But applied. taxation is to which it nature, own essential in its exercise its bounded must, therefore, purpose. It visit characteristics and leg- practicable way, the in reason of which all alike a just may within limits of judge, but which islature * * * Therefore, while con- what is taxation. we range given legislative discre- wide to be to cede the that'is, end, adapting to tion the means beyond limit government, there local of purposes cannot the sacred sacrifice legislative which the limit is reached when property. This right private right, which plainly sacrifices palpably guarded jealously against have themselves people must law. There fundamental in their transgressions appropriateness means therefore, be, a reasonable purpose. employed execute by acquies- estoppel question no in this case There is McQuillin, 306. Sec. period. See any considerable cence information makes out therefore, that the conclude, We the facts sought, and that on relief case prima facie 1925) (Chap. 11750 of Laws of stated, the Act therein

119 extending Stuart, boundaries of the so as include body considerable of rural lands owned co-relators some the northeast distance of the actual beyond range municipal benefits, appear would provisions contravene those Rights, our Declaration of protecting rights private property such those prohibit taking private just compensation, guarantee equal protection lаws right to acquire, possess protect private property.

In addition to the quoted from, three cases above some of the well considered supporting eases the views ex above pressed are: Omaha, Bradshaw v. 1 16; v. Courtney Neb. (Ky.), Louisville 12 419; Bush. Covington Southgate v. (Ky.), 491; Gaines, Ky. 562; 15 B. Mon. Parkland v. 88 Bridge Louisville, Ky., 189; Kaysville Louisville v. 81 Co. Ellison,

v. 18 163, 81; 43 L. R. A. Utah, Vestal v. Little Rock, 778; 54 Ark. 11 L. Waldrop R. A. v. Kansas City, 131 Ark., 453, 369; 22 Weston, S. W. Wells v. Davenport, 17 404; Iowa v. 384; Fulton v. Durant Mo. Iowa, 194; Langworthy v. 13 Ia. Kauffman, Dubuque, 210; 86; Sherry, v. 50 Wis. 6 N. W. 561. Smith See also McQuillin Corp., Municipal 2nd 2nd Ed., Secs. 291-295 of 272-8 of the first being edition, cited, Ed. Secs. and cases municipal as to exercise of extension of bound by general statutes; generally aries local action under held subject judicial review.

The demurrer to the information will be overruled and quash the motion to denied. turn respondent city.

We will now to the answer of the alleges respondent The answer exercising munici- territory pal powers over the described in the information by virtue of the two acts referred to therein, general a unconstitutionality makes denial of of either 11214, abolishing chapter the former acts. That of said creating City Stuart, approved Town of Stuart if May 1925, it should become effective provided that by majority qualified and when ratified a freeholder territory by act, at residing voters within the affected twenty days ap- after an election to be called within act; “Mayor proval of the that the and Clerk” of the town published a of Stuart call for said election once a week for weeks, commencing four 4th, 1925, consecutive June 30, 1925, election at the held June “the act was rati- by majority fied a qualified of the voters.” That there- Legislature passed after the (Chapter 11750) the act ex- tending the boundaries of the of Stuart which has previously incorporated thus been Chapter 11214; under that both said aсts were constitutional and valid.

It by is contended realtors that part of the answer is insufficient, because the required first act “Mayor and Council” of Town of publish Stuart to the call for election, whereas says the answer it was done “Mayor and Clerk.” If publication of the call for the election was made Mayor and Clerk under the direc- authority Mayor tion and of the Council, we with.the think that would have been sufficient. But the answer does allege. not so It is also contended that the answer fails to show majority ratification qualified freeholder voters, required by act, merely alleging ratification by majority “qualified voters.” Perhaps the meaning was, intended qualified voters to vote under the act. While allegations of the answer in par- both these technically ticulars is defective, the information did not validity attack the of the act grounds. on those fact, In the information in this case does allege any facts what-. attacking ever validity Chapter 11214, or the election held thereunder. It attacks the later act extending first act. Of incorporated city of the boundaries fall with void, the second would course, if first act was only ones objections If, however, were it. the above if de- allow answer, disposed be to we would made in all them, by respondent sired an amendment to be done. probability could sufficiency pertains to the question

The serious supposed to meet portion in of it which answer information, made in the unconstitutionality, as charge of extending city boundaries 11750, in against Chapter in lands of co-relators. North of the River so as to take unconstitutionality and general denial of. Aside from the general allegation benefited that said lands have been pleader, of the such which mere conclusions inclusion, are utterly allegations of facts the answer fails to meet the showing the information remoteness of location entire gist of As this was the municipal benefits. absence of to justify by alleging facts failure to case, respondent’s alleged, deny the facts specifically charge, meet such effect, oversight, and in hardly to mere be attributed can charged. The material facts an of the amount to admission territory described merely alleges “that within the answer sought to be excluded information in which the lands ’’ or are intended have been situated, benefits certain are reach allege that these benefits conferred, does not but it by the infor- co-relators, which are shown the lands half the annexed ter- in the eastern located to be mation benefits, far alleged so River. These ritory North furnished may all have been shows, answer as the territory and portion of the added some other western or lands. no benefit to co-relators’ from and of hence remote very answer and therein benefits referred mainte- (1) protection, “from the briefly alleged, are: fire equipped and well fire an efficient nance (2) company”, police protection, “by regular the patroll- ” ing police, (3) city that “the has paced built and a number of roads and streets and them,” (4) maintained “that safety health and of the inhabitants are served by City’s Department by Health regular means of in- spections and the mosquitoes eradication of and that a mu- nicipal hospital being supported by city now for the benefit of the citizens,” (5) city “that has voted im- provement bonds in $210,000.00 the sum of purpose for the paving roads and streets within territory.” None of these benefits are alleged reach or affect property only co-realtors. The benefit alleged which is to be available to all territory sought to be is, annexed in the language of the answer, “that all of said territory is ac- cessible to light electric telephone service under the City’s franchises and that such service would not be avail- ’’ able unless territory was within municipal limits. This language implies that such service was available, not city from the directly, utility but from corporations op- erating under city franchises. The alleged information telephone that co-relators had through connections nearby Jensen, poles town of and that no lights electric placed had been for service their section. It will also expressly recalled that the information denied that the property of co-relators had been by furnished with any roads streets, police or or fire protection, benefits of kind, and that none contemplated. were allegations These are not met the averments of the an- swer, which are referrable portions to other of the exten- territory sive covered the act. The answer closes with general denial property that the of co-relators had been over improvements assessed and no had been made city upon the same and that in contemplation by none were city, alleges but that the at assessed a rea- “improvements have and fair valuation sonable improvements contemplated, as is further been made and qualifies preceding This last clause the up set herein.” by relating equivocal the averments al- allegations back to ready discussed. joined, in co-relators are the information this

/Though in on case was the name the State the relation of filed Attorney was, It emphatically General. therefore the the duty allegations respondent the to answer the in- the exactly fully specifically, showing just formation what plannеd the had done or failed to do or to do with furnishing municipal benefits respect to to the described territory owned the relators. It was held in v. State Gleason, respondent justify 12 the “much 190, Fla. or disclaim, guilty good or are nsurpcuuit and not non pleas. necessary good All the facts to constitute a title up. In judgment by must be set default of such a plea, ’’ goes default for the State. demurring answer, Instead of to, moving strike, the judgment evidently relators filed a motion for ouster, theory entirely the justify that the answer failed usurpation charged. the This course was followed though Gleason plea was in- case, but, answer held gave respondent the court sufficient, privilege being if a answer, the effect the same as filing an amended judgment filed of motion for had been instead demurrer treated as a demurrer. motion was of ouster. The effect fit, power, grant if it saw to However, the court had the judgment moved for. See Crandall’s motion and render Prac., 674, rel v. 675, also State ex Law Common Law Saxon, Fla. 5 So. R. 801. might justified, granting now

This Court well proceeding judgment, but as this involves motion validity applied facts, of an act give respondent opportunity the Court desires to full can, charged. if justify, usurpation mo- the demurrer to information and the Therefore, quash tion to same are overruled and and the answer denied, respondent respond- is held with leave to insufficient, file, desired, ent to if an amended answer within fifteen days, upon respondent’s do, failure so to the motion judgment granted. of ouster will be

Per Curiam. —Since the above was written and action therein indicated taken Court, respondent has signified to the Court that it has no desire file an amended answer.

It judgment is therefor ordered that ‍‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​​​​‌‌‌​‌​‌‌​​​​‌​​‌‌‌​​‌‍ouster prayed. entered as C. J.

Terrell, and Bu- Whitfield, Ellis, Strum ford, J. concur. J., Shippey, Appellant, B. v. Anna T. Ap A. Shippey,

J.

pellee.

Division B. January 31,

Decision filed 1929. Farrington Lockhart', Appellant; & Baxter, Byrd Walton, Appellee. & having Per Curiam. This cause sub- heretofore been transcript mitted to the Court record

Case Details

Case Name: State of Florida Ex Rel. Davis v. City of Stuart

Court Name: Supreme Court of Florida

Date Published: Jan 30, 1929

Citation: 97 Fla. 69

Court Abbreviation: Fla.