Judges: DAVIS, J. —
Attorneys: Thomas Hamilton and Kelly Shaw, of Clearwater, for Appellant;
Jones White, of Clearwater, for Appellees.
Filed: Jan. 12, 1932
Latest Update: Mar. 02, 2020
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 44 This is an appeal from a final decree denying relief to certain property owners of Clearwater who contested the validity of certain paving assessments which had been made by that city. The relief sought was an injunction to restrain the municipality from instituting any proceedings for the enforcement of certificates of indebtedness *Page 45 issued by the
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 44 This is an appeal from a final decree denying relief to certain property owners of Clearwater who contested the validity of certain paving assessments which had been made by that city. The relief sought was an injunction to restrain the municipality from instituting any proceedings for the enforcement of certificates of indebtedness *Page 45 issued by the m..
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It appears that the assessments here involved were for the widening and repaving of a considerable stretch of the principal through street of the City of Clearwater, and that the primary benefit was to the public and the benefit to the abutting property merely incidental. Therefore to require the abutting property to bear the total expense of the improvement amounted to an arbitrary and unwarranted servitude, which could not be imposed. Abell v. Boynton, 95 Fla. 984, 117 So. 507. The city had no constitutional authority to make such an assessment; nor did the legislature have any constitutional power to validate it, unless appellant had waived his constitutional right to object, was held in the Abell case. See also the 2d 27th and 28th headnotes to the case of City of Fort Myers v. State, 95 Fla. 704, 117 So. 97. The rule of estoppel invoked in Abell v. Boynton might apply here, were it not for section 15 of the charter act, chapter 10393 of the Acts of 1925, which gave the appellant thirty days from the date of confirmation of the assessment within which to contest "the legality thereof by suit, motion, writ or special proceeding, in any manner questioning the legality of the said special assessment." The bill in this case was filed within such thirty-day period.
The validating act could not validate what the legislature could not have done or authorized to be done in the first instance. I do not see how, under the constitutional principles laid down in the Fort Myers and Boynton
cases, the legislature could have, by direct legislative act, imposed the entire cost of the improvement of such a main city street upon the abutting property, unless of course, it was done with the consent of the owners of such property. In the very nature of things, such an improvement is primarily a public benefit, and some equitable portion of the costs should be imposed upon the public, that is, upon the city as the representative of the public, and not burden the abutting property with the entire expense.
For these reasons I am inclined to the view that the decree of the court below should be reversed.
ELLIS, J., concurs.
