120 So. 361 | Fla. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *129
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *130 This is a statutory bond validation instituted in the Circuit Court for Highlands County pursuant to Sec. 3296, et seq., Rev. Gen. Stats. 1920, as amended, now Sec. 5106, et seq. Comp. Gen. Laws 1927. The bonds involved are an issue of $195,000.00 of general improvement bonds of the Town of Lake Placid, dated June 1, 1928, maturing serially in divers amounts from 1939 to 1957, inclusive, the issue consisting of 195 bonds of the denomination of $1,000 each, bearing interest at the rate of 6% per annum, payable semi-annually.
The issue is designed to pay the cost of the following projects of the obligor municipality; $32,000 for paying the Town's one-third of the cost of improving divers streets; $70,000 for establishing, constructing and installing a water *131 system; $10,000 for constructing and installing an electric light system; $75,000 for paying for work previously done and indebtedness previously incurred in the construction of a municipal golf course, and providing funds for the completion thereof; $8,000 for acquiring a fire truck.
The bonds are issued by authority of Chap. 12990, Acts of 1927. Pursuant to resolution passed at a regular meeting of the Town Commission, an election as required by Sec. 47 of Chap. 12990 was held on May 22, 1928, for the purpose of submitting to the qualified voters the question of whether or not said bonds should issue, the ballot being arranged so that the voters could vote separately upon the several projects as hereinabove set out. (See Antuono v. City of Tampa,
When the proceeding to validate the bonds was instituted in the circuit court, the State attorney answered, admitting the validity thereof. Certain resident taxpayers intervened and demurred to the petition, their demurrer being overruled. The intervenors then answered. Portions of their answer were stricken on motion of the petitioner. Evidence was thereafter heard by the Circuit Judge on the issues made by the remaining portion of the intervenors' answer. On August 7, 1928, the Circuit Judge entered a final decree validating the bonds, from which decree the intervenors prosecute this appeal.
Appellants challenge the validity of the bonds upon divers grounds. They first contend that the bonds are issued primarily for the benefit of private corporations, in *132 violation of Article IX, Sec. 7, Constitution of Florida. In support of this contention, appellants introduced in evidence a contract aute-dating the passage of Chap. 12990,supra, which contract was executed, as parties of the first part, by the owners of some 20,000 acres of land now, but not then, embraced within the limits of the appellee municipality, and, as party of the second part, by the Lake Placid Club Company, a corporation. The general purpose of the contract was to induce and enable the Lake Placid Club Company to establish upon a tract of 3,000 acres located within the municipality, and to be donated to the Club Company by certain of the first party owners, a health and recreation resort designed to attract visitors and new residents to the community. The parties of the first part to the contract embraced fifteen land owners, five of whom are corporations, and the remainder individuals. Amongst other things, the parties thereto agreed to co-operate in procuring appropriate legislation to reorganize the existing municipality of Lake Stearns by changing its name to Lake Placid; by changing the name of of certain lakes and creeks in the vicinity; by altering its plan of government; to extend the city limits of the new Town of Lake Placid so as to embrace about 20,000 acres of land owned by the several parties of the first part to the contract; and to make appropriate provisions in the Charter of the new municipality protecting the parties to the contract in the taxing of their outlying lands embraced within the new municipality. It was further recited in the contract that the parties thereto believed that the plan embraced therein would greatly enhance the value of their lands and facilitate the sale thereof. Appellants, none of whom are parties to the contract just mentioned, assert that the enactment of Chap. 12990, supra, was procured by the land owners pursuant to this agreement and that the levying of a tax to pay the bonds would be a *133 tax primarily for the benefit of the corporate land owners who were parties to the agreement.
The bonds in question are general improvement bonds. No special assessments are involved. The record shows that although the corporations referred to own perhaps 50% of the area of the new municipality, and pay a proportionate amount of the taxes therein, the remainder is held in a diversity of ownership amongst many natural persons. It is not shown that the corporations involved will enjoy benefits other than those necessarily incidental to the general improvements contemplated; nor any benefits relatively disproportionate to that to be enjoyed by other property owners; nor any benefit disproportionate to the amount of taxes to be paid by the several property owners, including the corporations, to retire the bonds. Nearly all of the corporately owned land in question is now owned by the Lake Placid Land Company. The evidence shows that only "a very small part" of the land lies in the vicinity of the contemplated improvements, the holdings of the company lying largely outside of the business part of the town and consequently remote from the vicinity of the improvements. While the Land Company owns some of the lands adjacent to the proposed golf course on the west side, a great many individuals, many of them residing in other cities and States, own the remaining lands bordering the golf course, the latter ownerships aggregating the great majority of the area of the lands bordering upon or near the golf course. The ownership appears to be quite diversified.
The language of this Court, speaking through Mr. Justice WHITFIELD, in Hunter v. Owens,
"In testing the validity of a statute with reference to the facts and circumstances upon which it is to operate, the validity of the statute does not depend upon the preponderance *134 of evidentiary considerations; but the statute stands unless it conclusively appears that there are or can be no conceivable circumstances upon which it can validly operate or that under no circumstances can it operate or be effective to accomplish the intended purpose, without violating organic rights. The propriety of action taken under the statute is subject to judicial review. While under the Constitution 'no tax shall be levied for the benefit of any chartered company of the State' (Sec. 7, Art. IX), yet, if a public improvement that is afforded by tax levies does merely incidentally benefit private corporations along with other persons, the Constitution is not violated in levying the tax for the public purpose, for the law contemplates that corporations shall participate in the burdens and benefits of taxations within appropriate limitations." Special assessment bonds were there under consideration, but the principle is equally applicable to a tax to retire general improvement bonds.
Appellants also complain of the provisions of Sec. 4 of Chap. 12990, relating to the manner of electing the Town Commission. Amongst other things, that section provides in effect that the town shall be governed by a commission of five members, three of whom, to be known as "General Commissioners," are to be elected by the voters at large. The fourth and fifth, to be known as "District Commissioners," are to be elected to represent the newly annexed territory lying to the east and west of the predecessor municipality of Lake Stearns, now embraced within the new municipality, Lake Placid. These two commissioners are to be chosen by the three general commissioners from two nominees designated in each district by taxpayers representing a majority in value of the property in those districts according to the assessment thereof for purposes of State and county taxation, the voters at large having no direct voice *135 in the election of the two district commissioners. These two districts constitute a large part of the territory annexed to the reorganized municipality, and substantially all of the lands in the district are owned by two of the corporations who were parties to the agreement hereinbefore referred to, or their grantees. Many of the important powers of the town, including the power to impose taxes, to expend public funds, and to make improvements of the character here under consideration, may be exercised only upon the affirmative vote of the five commissioners, thus giving the District Commissioners, who are at present concededly persons connected with and interested in the corporations owning substantially all the land in those districts, most of which is "outlying" land, a veto power in the exercise of those powers of government. Under the terms of the charter, however, each of the three general commissioners, elected by the voters at large, have a similar veto power. This phase of the charter appears to be in accordance with the desire of the land-owner corporations, as referred to in the agreement, to protect themselves in this manner in the taxation of their outlying lands, since the corporations have not vote at the polls.
Appellants urge that the passage of the Charter Act in this form was inspired by the influence of persons interested in the corporations. The constitutionality of a Statute, however, is not to be tested by influence brought to bear to secure its enactment, or by motives or purposes which may have actuated the Legislature. At least, in the absence of fraud or the most palpable abuse of power, if not always, those questions are matters of legislative, not judicial, concern. Polk v. Mutual Reserve, etc.,
Appellants further claim that the method just mentioned of selecting the two District Commissioners affords the land owners of the two Districts an unjust preference and superior power in the governmental affairs of the municipality, thereby creating an unlawful discrimination in their favor. While much might be said pro and con upon the merits of that proposition, the record does not disclose whether, if such preference exists, the appellants are the beneficiaries or the victim thereof, for it does not appear by the evidence but that the appellants' lands are situated in the Districts alleged to be favored. So upon the record, appellants' rights to raise the questions is doubtful for that reason alone. Adams v. American A. Chemical Co.,
The ultimate effect of appellants' contentions as to that portion of the Charter now under consideration is to question the power of the Legislature to grant a municipal franchise embracing the method of selecting the municipal governing body just stated, and other powers assailed, and to further question the right of this municipality to exercise the franchise so granted. It is charged that the Commissioners have not only acted irregularly and contrary to the terms of the Charter Statute, but appellants go further and question their right to act at all. It is virtually a charge of usurpation, and thereby becomes a collateral attack by individuals upon the existence of the municipality by questioning the validity of its incorporation. Where an attempted incorporation of a municipality is an absolute nullity, such incorporation may be collaterally attacked. In this instance, however, acting under at least color of authority *137
from the Legislature found in the passage of Chap. 12990,supra, this municipality apparently in good faith has taken the necessary steps to put its Charter into operation; has elected its officers, has assumed the duties of local government under its Charter, and has otherwise engaged in an active user of the franchise; all of which has been acquiesced in by the inhabitants of the municipality until the institution of this proceeding. Thus the municipality has become at least a municipality de facto. Tulare Irr. Dist. v. Shepard,
The method of electing the Town Commissioners, hereinbefore described, is not repugnant to the equal protection clause of the Fourteenth Amendment to the Federal Constitution. It must be borne in mind that mere irregularity alone, or the mere lack of abstract symmetry, does not offend against the Fourteenth Amendment. In order to become obnoxious to that amendment, a selection or classification by a State Legislature must be clearly arbitrary and unreasonable, having no just relation to real differences in the subject matter of the regulation. The matter of classification is a practical one, dependent upon experience. People v. Zimmerman, 73 L.Ed. (U.S.) 52; International Harvester Co. v. Missouri,
In its purely governmental relations, a municipality is a subordinate political sub-division of the State created for purposes of local government. Waller v. Osban,
Appellants also contend that the election hereinabove *141
mentioned was invalid because voting therein was restricted to freeholders. Sec. 47 of Chap. 12990, supra, provides: "Before such bonds shall be issued an election shall be called by the commission and notice of such election shall be published, etc. * * * If a majority of the legally qualified voters, voting at said election, shall vote for issue of said bonds, then commission may by ordinance provide for issuance of said bonds. * * *" No provision in the Charter Act of this municipality (Chap. 12990) relating specifically to the qualifications of voters in bond elections has been called to our attention. Chap. 9294, Laws of Florida (now Sec. 250, Com. Gen. Laws 1927), was approved June 7, 1923. That chapter provides: "It shall be unlawful for any person to vote or participate in any county district, or other bond election held in this State, who is not a freeholder therein and who is not otherwise qualified as a voter therein." Appellants contend that since the Charter Act of this municipality became a law on June 6, 1927, and contained a clause repealing all laws in conflict therewith, it repealed Chap. 9294, supra, so far as this municipality is concerned, resting their contention upon Fergusson v. McDonald,
The municipality is indebted to Lake Placid Land Co. in the sum of $35,000, evidenced by promissory notes of the municipality, for money loaned by the Land Company and used by the municipality in preliminary work upon the proposed golf course. The municipality is also indebted to divers other persons for work done and materials furnished for the same purpose. Appellants further contest the validation of the bonds because it is anticipated by them that the debt to Lake Placid Land Co. will be paid from the proceeds of the bonds, which action appellants claim would be illegal, for divers reasons, amongst which are that the *143
bonds for the golf course thus in effect, become refunding bonds in part and are not issued in accordance with the General Statute on that subject, Chap. 11855, Acts of 1927. Even if this objection relates to the validity of the bonds as distinguished from an illegal expenditure of the proceeds, as to which appellants would have their appropriate remedy (see Perry v. Panama City,
Here we have a case in which the municipality has exercised express authority to borrow money to pay the cost of preliminary work upon an expressly authorized and permissible municipal project and proposes to complete the project and pay the cost of preliminary work from the proceeds of bonds issued for that express purpose pursuant to express authority. In view of the express Charter provisions, the fact that the municipality may contemplate using a part of the proceeds of the bonds to retire expressly authorized preliminary indebtedness upon the project, presents no such excess or abuse of authority in the issuance of the bonds as to render the same invalid. See Perry v. Panama City,
A further objection based upon the anticipated payment of the loan from Lake Placid Land Co. rests upon the contention that because one of the town commissioners who voted for the issuance of bonds, his vote being essential to their issue, was at the time the manager of the land company, *146
such commissioner occupied a fiduciary relation to both the debtor municipality and the creditor corporation, and from that premise it is contended that his action in voting upon the issuance of the bonds was inviolation of public policy. Lainhart v. Burr,
This objection, however, cannot be entertained in this proceeding because, in its last analysis, it pertains not to the validity of the bonds but to the propriety and legality of a proposed disbursement of a portion of the proceeds. The object for which the bonds are to be issued is a permissible and valid one. Payment of the loan from the land company is not one of the expressed purposes for which the bonds are to be issued. That action is merely anticipated by appellant. There exists other preliminary indebtedness to divers other persons the legality of the payment of which from the proceeds of the bonds is not questioned by appellants. Even if the dual capacity of the commissioner in question offends against public policy so as to taint the transaction between the land company and the town, a question which we do not now consider, that relationship would not preclude a vote by the Commissioner upon the issuance of bonds for a valid purpose, in the issuance of which such commissioner cast an essential vote. If from the proceeds of bonds so issued, an illegal expenditure is attempted, relief by appropriate proceedings is available to affected taxpayers. If the action of the commissioner is illegal because of his dual relationship, it is the illegal expenditure of the proceeds, and not the issuance of the bonds, that would violate public policy, where, as here, the bond issue is for a valid public purpose, and the expenditure in question is merely anticipated and incidental, and involves only a relatively minor portion of the proceeds. See Perry *147
v. Panama City,
Appellants' contention that the period of maturity of the fire truck bonds is excessive when compared to the probable life of that utility, is not supported by any evidence as to what the probable useful life of the fire truck will be. We cannot take judicial notice of the probable life of the fire truck, even when measured by the most remote maturity of the fire truck bonds, which is eighteen years. It follows therefore that the objection cannot be sustained.
We have carefully examined all other matters assigned by appellants in objection to the bonds, but find no ground for reversal.
The decree appealed from is affirmed.
TERRELL, C. J., AND WHITFIELD, ELLIS, BROWN AND BUFORD, J. J., concur.