The statements and discussions herein cover the essential facts in each case. These suits are brought to enjoin the sale of bonds and the levy of taxes in the Everglades Drainage District in this State under Chapter 12016, Acts of 1927.
In each case it is alleged that the complainant is a general tax payer of the State of Florida and is the owner of described parcels of lands within Everglades Drainage District. The Dade Muck Land Co. alleges that it also owns described land in the State that is not within said district, which latter land is in "no wise affected by or interested in the reclamation of said district, except in so far as it may be subject to a state tax in aid of said district or for the purpose of enabling the State to pay taxes on its own lands in said district or to buy in lands sold for taxes in said district."
It is alleged that the Everglades "lie in a natural basin of lime rock extending from and including Lake Okeechobee and lands surrounding such lake on the north, south to the Florida Bay, Atlantic Ocean and the Gulf of Mexico and bounded on the west by a rock rim running in a southerly direction from the highlands west of the Kissimmee river in the County of Highlands to the Gulf of Mexico and on the east by an irregular margin or rim of limestone formation which is elevated several feet above said Everglades and which said rim or margin, except where it is broken through by sloughs, is also slightly above the level of the country to the east thereof, extending to the Atlantic Ocean; that approximately nine hundred thousand acres of said Everglades lie in Dade county, that in said Dade county there is a gradual rise in the elevation of the land from the Atlantic Ocean westward toward the Everglades proper varying from 9 to 16 feet, with occasional sloughs, now partly drained, and extending for a distance of from 3 to 10 miles until the rim or margin of the said Everglades proper is reached; that adjacent to, and on the eastern side of, said Everglades and wholly without the boundary lines of said Everglades proper, in said Dade county, and outside of the said grant by the United States government under said Act of September 28, 1850, and between the eastern rim or margin of the said Everglades and the Atlantic Ocean there exists a natural elevation composed of rock with a shallow sand soil, which rock in numerous locations upon said ridge protrudes above the surface of the soil; that the said elevation is located partly within the City of Miami and partly within the City of Coral Gables, each a municipal corporation in the State of Florida, and extends from Flagler street, in the City of Miami, aforesaid, in a general southerly direction in Township 54 South, Range 41 East, a distance of 5 1/2 miles; that said ridge varies in width from 2 1/4 to 3 miles and lies east of a public road in said county, known as "Red Road," and west of a public road in said county which is partly within the City of Miami and which within said city is designated 27th Avenue, and north of the said city is known as "Grapeland Boulevard"; that the said elevation includes an area of approximately 14 square miles or 9,000 acres, of which area 6 square miles are located within the City of Miami, and 8 square miles are located within the City of Coral Gables; that the portion of said elevation which is located within the said City of Coral Gables constitutes the highest development and most thickly populated sections of said city and includes all of the business section thereof; that the lands located upon said elevation are now, and for several years have been, divided into lots of convenient dimensions for use as homesites and in the various forms of urban development, and that the said lands are now, and have been for several years, by reason of their location and the population of the cities in which the same lie, peculiarly suited and desirable for use as sites for homes and business buildings; that the said elevation constitutes the highest uniform elevation of land in Dade county and is drained by gravity without resort to artificial drainage facilities other than the canals and waterways which have been built therein chiefly for development as a winter resort, which canals connect with the Tamiami Canal in the Everglades proper; that the lands located upon said elevation have been the subject of extensive and costly development and improvement, designed to increase their value and desirability for the purposes aforesaid, and are now populated by more than 10,000 people; that upon the said elevation there are located several thousand buildings completed and in course of construction, including homes and large hotels, apartment buildings, churches, store buildings, office buildings, municipal structures, theatres, a coliseum, university and preparatory school buildings and public and private schools, power plants, street car lines, railroad lines, parks, paved streets, avenues and boulevards, and every kind of modern improvement usually found in populous cities; that the actual value of the lands and improvements thereon located upon the said elevation is more than $50,000,000; that the lands owned by complainants, described as Parcel No. 1, are located upon, and form part of, such elevation; that situated within the Everglades Drainage District are many thriving villages and wealthy municipalities among which are the following:
Okeechobee, Brighton, Moore Haven, Lake Worth, in part; Deerfield, Pompano, Citrus Center, Elder Berry, Lake Port, Duck Head, Clewiston, Indian Town, Mayaca, part West Palm Beach, Ritta, South Bay, Okeelanta, Pahokee, Canal Point, Belle Glade, Chosen, Loxahatchee, Davie, part of Ft. Lauderdale, Dania, Hollywood, in part; Hialeah, part of Miami, part of Coral Gables, Coconut Grove, Larkins, Perrine, Goulds, Silver Palms, Princeton, Redlands, Homestead, Florida City.
That said municipalities have been created by the Legislature of the State of Florida, or under its authority, for the purpose of establishing and carrying on municipal government in the territory embraced and included in said several named municipalities. That said municipalities have been given authority by the Legislature to levy taxes for municipal purposes upon the real and personal property situated within their boundaries; have also been authorized by law to bond themselves for various municipal purposes and to assess and collect taxes for the retirement thereof.
It is, in substance, alleged that complainant's lands lying within the Everglades Drainage District are located upon an elevated ridge which is drained by gravity; that such lands are highly improved and of great value but are not and never have been in need of artificial drainage to carry rain falling on said elevation and could not receive any benefit whatsoever from the construction of drains, canals, levees, dikes or other drainage works upon or adjacent thereto; that whatever need there may have been of protection or drainage for the lands on said elevation has been taken care of by local drainage and has been relieved by the Miami Canal and the Tamiami Canal adjacent to said elevation and also by the control of overflow waters in the Everglades and of Lake Okeechobee, and that though said canals have in part been constructed or aided by moneys of the Everglades Drainage District, your orators allege that without such canals the gravity drainage of said ridge into the Miami river, and to some extent into the Atlantic Ocean was sufficient for most purposes as affecting the bulk of lands on said elevation, and that no extensive or expensive scheme of drainage or dyking was needed or is now needed for the proper drainage and protection of said elevation; that one parcel of complainant's described lands is a municipal lot in the City of Coral Gables, in Dade County, Florida; that it is high and airy and needs no drainage; that another of said parcels of land is in the municipality of Hialeah, is high and airy and needs no drainage; that like the lot in the City of Coral Gables, surface waters falling on the lot is "fully taken care of by ordinary municipal drainage and sewer construction by the city (of Hialeah), with which the said Commissioners of Everglades Drainage District have no connection and contribute nothing to the support; except that the same are connected with a certain canal, known as the Miami canal, constructed by the Board of Commissioners of Everglades Drainage District, leading from Lake Okeechobee to the Miami river and thence into Biscayne Bay, for the purposes of drainage, as authorized by law. That each of said parcels of land located within said municipalities of Coral Gables and Hialeah are subject to the bonded indebtedness of Dade county and of each of said municipalities, as well as general state and county taxes, which are assessed thereon, and that by the action of said Commissioners of Everglades Drainage District levying an additional tax of one-fifth of one mill on the dollar on the same, greatly increases the burden of taxes on said lands. That the Coral Gables lot, described in paragraph 2 of this bill of complaint and designated as Parcel One, has been assessed, for State and county purposes for the year 1926, at a valuation of $400.00, and has been assessed by the City of Coral Gables for municipal purposes, for the year 1927, at a valuation of $3,150.00; that the assessment upon the same for the purpose of said ad valorem drainage tax, as made by the Commissioners of Everglades Drainage District under Chapter 12016, Acts of 1927, is $420.00; that said lot in Hialeah has been assessed for State and county purposes, for the year 1926, at a valuation of $40.00, and has been assessed by the City of Hialeah for municipal purposes, for the year 1926, at a valuation of $500.00; that the assessment upon the same for the purpose of said ad valorem drainage tax, as made by the Commissioners of Everglades Drainage District under Chapter 12016, Acts of 1927, is $45.00 valuation; that the health and prosperity of each of said municipalities in which said land is located is directly dependent upon the ability of said municipality to incur bonded indebtedness upon the lands located within their limits, for the purpose of accomplishing municipal improvements, and that the issuance of additional Ten Million Dollars of bonds by the Commissioners of Everglades Drainage District against the lands embraced within said district, including the lands within each of the said municipalities will, to the extent of the value of the lands in said municipalities, as compared to the lands in the whole of the said Everglades Drainage District, reduce the bonding power of said municipalities, and thereby prevent the same from being able to borrow money sufficient to accomplish necessary municipal improvements, and thereby greatly depreciate, instead of add to, the value of your orator's said lands, which are mainly valuable because of, and dependent upon, the action of said municipalities in making improvements around and about the same; that although said parcels of land, located within said municipalities of Hialeah and Coral Gables have for many years been embraced within the boundaries of the Everglades Drainage District as fixed by law, yet the Coral Gables lot has at all times, except in the years 1913 and 1914 as above recited, been specifically exempt from any obligations to said district by way of taxes levied upon the same, except the maintenance tax of one mill upon the dollar, authorized by Chapter 8412, Acts of 1921, Laws of Florida, and that the Legislature of the State of Florida by its action in exempting said lands within said municipality, including the lands of complainants, has established and recognized the principle that no lands should be subject to taxation by the Commissioners of Everglades Drainage District for drainage purposes, except those lands which would likely be benefited by the completion of the works of drainage contemplated by said Acts; that for many years the Legislature of the State of Florida has had knowledge of the fact and recognized the fact that no benefit whatever would accrue to the lands of complainants, or anyone else situated within the boundaries of the municipalities of Hialeah and Coral Gables, and not since the enactment of Chapter 6857, Acts of 1915, until the Act of the Legislature of 1927, known as Chapter 12016, has any attempt been made by the legislature to make any of said lands subject to a tax to pay any bonded indebtedness authorized and contracted for the purpose of completing said drainage, and that said Act of the Legislature of 1927, is arbitrary, capricious and unreasonable, and made without any investigation of finding or facts as to benefits which might reasonably be expected to accrue to your orator and others having lands similarly situated within such municipalities of Hialeah and Coral Gables."
That other lands of complainants "are ordinary muck lands, requiring drainage, but as to which complainant avers the cost of completing said drainage and reclaiming said land, will greatly exceed any benefit which would be derived by said land therefrom, and that under no reasonable plan of reclamation now contemplated by said Commissioners of Everglades Drainage District, could said lands be increased in value a sufficient amount to cover the assessment against said lands"; "that the lands located upon said elevation, including the lands of complainant, constitutes the most valuable lands within said Everglades Drainage District and are the highest developed and most extensively improved lands within the said district; that the said ad valorem tax levied and imposed upon said lands is designed only for the benefit of the other properties and lands located within said Everglades Drainage District which have a value much less than the value of the lands located upon said elevation, and are designed for the purpose of raising revenue or giving security by authorizing the levying and assessment of the ad valorem tax upon the lands located upon said elevation in order to provide funds by issuing such bonds with which to carry on drainage operations designed to drain and reclaim the muck lands located within said district. That the actions taken constitute a palpable abuse of the taxing power and and are not based upon any determination that a general scheme of drainage would inure to the benefit of all property within said district, even indirectly, and are not imposed in the exercise of a sound and legal legislative discretion."
It is not necessary to here state other detailed allegations or to enumerate the challenges of the validity of Chapter 12016, Acts of 1927, and of the administration action taken thereunder by rules and regulations and otherwise. The prayer in No. 644 is for a "decree that the attempted issuance of said bonds, and the levy of taxes and assessments by the said defendants under the provisions of the aforesaid Act, known as Chapter 12016, Acts of 1927, are wholly null and void and without authority of law, and that the defendants may be forever enjoined and restrained from issuing any bond or other obligation of any character whatsoever under the provisions of the aforesaid Act, and may be forever enjoined and restrained from levying taxes or making assessments of any character whatsoever under the provisions of the aforesaid Act, and that said defendants may be enjoined until the final hearing in this cause from issuing any bonds or other obligations or levying any taxes or assessments under the provisions of the aforesaid Act, and that your orator may have such other and further relief as equity may require and as to your Honor may seem meet."
The prayer for relief in No. 638 is:
1. That Chapter 12016, Laws of Florida, Acts of 1927, in so far as the same provides for the assessment of taxes or special assessments upon lands of complainants and all other lands similarly situated, may be decreed to be unconstitutional and void and of no force or effect.
2. That the said Act may in its entirety be decreed to be unconstitutional and void and of no force or effect.
3. That the rules and regulations adopted by the said Board of Commissions of Everglades Drainage District on June 28, 1927, may be decreed to be unconstitutional and void and of no force or effect.
4. That all of the provisions of the said Act, and all of the provisions of the rules and regulations adopted, as aforesaid, by the said Board of Commissioners of Everglades Drainage District, which purport to bind the Legislature of Florida in the future to enact laws to secure the payment of the principal and interest of the bonds purported to be authorized to be issued by said Act and which purport to bind the State of Florida to appropriate funds from its treasury to pay the principal, and interest of said bonds or to pay ad valorem taxes purported to be authorized to be levied under the provisions of said Act, and which purport to bind the Trustees of Internal Improvement Fund of the State of Florida to pay the said taxes, and which purport to be subject to the payment of said taxes the assets of the Internal Improvement Fund of the State, may be declared to be unconstitutional and void and of no force or effect.
5. That the said defendants, Board of Commissioners of Everglades Drainage District, may be enjoined pending the final determination of this cause, from issuing, selling or disposing of any bonds under or in pursuance of the said Chapter 12016, Acts of 1927, and that upon final hearing the said injunction may become perpetual.
6. That the said defendants, Board of Commissioners of Everglades Drainage District, may be enjoined and restrained, pending the final determination of this cause, from levying any taxes or assessments in pursuance of the said Act and that upon final hearing the said injunction may become perpetual.
7. And for general relief as equity may suggest and as may seem meet and proper.
In case No. 644 the defendants demurred on grounds as follows:
"1. There is no equity in the said bill of complaint.
"2. No injury to the complainant therein, or to the other parties therein mentioned as being similarly situated to complainant, is shown by the acts sought to be enjoined.
"3. The bill of complaint affirmatively shows that the acts of the defendants, sought to be enjoined and restrained, are being done by them in conformity to a valid act of the Legislature of the State of Florida.
"4. The bill of complaint affirmatively shows that the rules and regulations adopted by the Commissioners of the Everglades Drainage District were by them legally adopted pursuant to powers lawfully conferred upon them by the statutes of the State of Florida, and that neither of said rules nor regulations adopted violates any of the provisions of the Constitution or statutes of the State of Florida in substance or effect.
"5. This Court has judicial knowledge that the Everglades Drainage District was first created by legislative act in the year 1907, and that the boundaries at that time laid out were fixed to include the property of complainant in the district, and that in so far as complainant's property in the said Everglades Drainage District is concerned, that complainant is barred by laches by now contending that his particular property located in Coral Gables and Hialeah is not now lawfully in the said district and subject to the laws governing the same, and the rules and regulations thereof.
"6. The Legislature of the State of Florida has full power under the Constitution to lay out and establish a Special Drainage District, providing for a special tax to make improvements therein, provided the benefits to the property exceed the cost of the improvement, and it affirmatively appears from the allegations of the bill of complaint, and the facts and circumstances judicially known to the Court, that the acts sought to be enjoined have been lawfully done pursuant to the lawful exercise of such power lawfully residing in the Legislature.
"7. Nothing contained in the amended bill of complaint shows that the complainant, or those similarly situated to him, will be deprived of property rights without due process of law in violation of either the State or Federal Constitution.
"8. The State has lawful power to enact a law providing for a Special Drainage District in which such State is a property owner, and to make a contract with the holders of bonds to be used against such district that in the event any lands owned in such district are sold for a special improvement taxes assessed on lands in the district that such lands shall be bought in and the taxes paid by the Trustees of the Internal Improvement Fund out of any moneys in hand, or to be appropriated by the State for such purpose.
"9. The bill of complaint affirmatively shows that the statute under which defendants are alleged to be proceeding, — known as Chapter 12016, Acts of 1927, — was lawfully and constitutionally passed by the House of Representatives and the Senate, and thereafter approved by the Governor pursuant to constitutional requirements.
"10. It affirmatively appears that all the matters embraced in Chapter 12016, Acts of 1927, are either matters covered by the title, or properly connected therewith, and that the title of said Act is neither deficient or misleading.
"11. It is not shown by any allegation of the said bill of complaint that any law, or provision of the State or Federal Constitution has been violated or will be violated by these defendants."
Similar grounds of demurrer were interposed in case No. 638.
In each case the court overruled the demurrer.
On appeal in each case the order overruling the demurrer is assigned as error.
Chapter 12016 is as follows:
"AN ACT to Authorize the Issuance of Additional Bonds of the Everglades Drainage District of Florida, and to Provide for the Payment of Such Bonds.
Be It Enacted by the Legislature of the State of Florida:
"Section 1. That the Board of Commissioners of Everglades Drainage District is hereby authorized and empowered to issue negotiable bonds of the District in amount of TWENTY MILLION DOLLARS ($20,000,000) in addition to bonds now outstanding, in order to complete the work for which said District was created. Such bonds, principal and interest, may be made payable in gold coin at the office of the State Treasurer and also, at the option of the holder, at a bank or banking house, in the City of New York, to be designated by the Board. Said bonds shall be issued at such time, or times, in such amounts, and in such form and denomination, and shall bear interest rate, not exceeding six per centum per annum, payable semi-annually, and to mature at such time, or times, not exceeding Forty (40) Years from the date of issuing, and to be sold at such price as said Board may determine.
"Section 2. There is hereby appropriated for the payment of such bonds, proceeds of the acreage taxes heretofore or hereafter levied in such District, over and above the amounts which the Board may use for payment or redemption of bonds now outstanding and payable exclusively out of such acreage taxes. As further security for the sole purpose of paying or redeeming bonds authorized by this Act, there is hereby authorized, levied, and assessed, beginning with the year 1927, an annual ad valorem tax, or a tax from time to time, on the real property in such District, additional to such acreage or drainage tax, in such amount or amounts as shall be necessary for the payment of such bonds. All assessments and levies herein authorized shall be made by the Board of Commissioners of Everglades Drainage District. Before any such levy shall become final, said Board shall give Notice by Publication of the making thereof and of a time and place of meeting to consider objections thereto, which notice shall be given in such form and for such time, not less than thirty days, as shall be adequate to afford reasonable opportunity to appear and be heard before said board, and a hearing upon all objections shall be had at the time and place named in such notice, all under such reasonable rules and regulations as shall be adopted by said board for such purposes. The board may, in the first instance, specify an amount to be levied annually for such purpose, and thereafter, from year to year, may increase or decrease such amount, or they may determine such amount, or amounts, from time to time, if and as it may seem necessary. Such tax shall be levied on such real property including all improvements thereon, in proportion to its full and just value, at such rates as may be required based upon such value. The lands within such district held by the Trustees of the Internal Improvement Fund shall be subject to the taxes hereby imposed, and the said trustees shall pay such taxes out of funds in hand, or to be appropriated by the State for such purposes. Until all bonds, principal and interest, are paid all proceeds of the sale of said lands including proceeds, principal and interest of mortgages thereon now held or hereafter acquired, excepting only the twenty-five per centum (25%) to be appropriated to the State School Fund, and excepting moneys paid for taxes and assessments for the purposes of said district on lands held by the Trustees of the Internal Improvement Fund in said district, and excepting moneys used for bidding in lands at tax sales for the purposes of said district shall be paid by the Trustees of the Internal Improvement Fund to the Everglades Drainage District to be held and used as a redemption or sinking fund for the principal of bonds issued under this Act.
"Section 3. The full and just value of the several parcels of real property in the District, including the lands held by the Trustees of the Internal Improvement Fund, shall be determined by the Board of Commissioners of Everglades Drainage District, prior to the issuance of any bonds under this Act, and thereafter each year, or from time to time, as may be necessary, within the twelve months preceding the final levy of any tax based thereon. The valuation made shall constitute the assessed valuation of the District for the purpose of this Act. Before such valuation shall become final, published notice that such valuations have been made and are on file, shall be given in such form and for such time, not less than Thirty (30) Days, as shall be adequate to afford reasonable opportunity to appear and be heard before said Board, and a hearing upon objections shall be had.
"Section 4. The lists of properties and taxes thereon in the several counties shall be certified to the Tax Assessors in the same manner, as near as may be, that land lists are now certified under Section 1167 of the Revised General Statutes of Florida and in all other respects the law governing the assessment and collection of drainage taxes, and the sale of lands for the non-payment of such taxes in the Everglades, shall be and is hereby made applicable, as near as may be, to the tax hereby authorized for the payment of such bonds, except that with respect to such tax, the Trustees of the Internal Improvement Fund shall, in the absence of other satisfactory bidders, buy in any lands sold for such tax, paying immediately the amount thereof, using any funds in hand, or to be appropriated by the State for such purposes. Such tax shall be on a parity with State and county taxes when two or more of such taxes are collected on one payment or receipt or by one tax sale. The sale of property for State or county or other taxes shall not discharge the lien of the tax authorized by this Act, nor shall the sale of property for this tax discharge the lien of State or county or other taxes having equal dignity with such tax. Such tax from date of assessment shall have the force and effect of a judgment and execution at law against the owner of such property.
"Section 5. No bonds shall be hereafter issued by the Everglades Drainage District, except under this Act, nor shall any bonds be issued under this or any future Act, if, at the time they are issued the aggregate debt of said District, including such bonds, but deducting funds in hand applicable to the payment, redemption or conversion of such debt, shall exceed Twenty-five per centum (25%) of the assessed valuation of the real property of the District as determined under this Act. Provided, however, that the Board may issue bonds additional to the amount authorized by Section 1, to provide funds to refund or convert any bonds now outstanding, and may issue notes as provided in Section 1177 of the Revised General Statutes, securing the same if desired with bonds issued under this Act, and may also issue one or two-year notes in anticipation of taxes levied or to be levied to pay the principal or interest of any bonds issued under this Act. The provisions of Sections 1180 to 1187, inclusive, of the Revised General Statutes of Florida, shall apply to the bonds and taxes authorized by this Act, when not in conflict herewith.
"Section 6. The Board shall have power, in contracting for the sale of any bonds, to provide for the creation and maintenance of the necessary sinking fund out of proceeds of sales of lands, and/or levy of taxes and/or proceeds of mortgages.
"Section 7. It is hereby determined that the benefits to the territory included in the Everglades Drainage District from the completion of the work for which the District was created, will exceed the cost of such completion to be financed by the issuance of such bonds, and that the tax authorized by this Act, additional to the acreage or drainage tax heretofore levied is in proportion to the benefits from such works to the several parcels of real estate within the District, including the lands held by the Trustees of the Internal Improvement Fund. The assessment of such tax shall not be impaired, nor the levies thereof restricted, so long as any of the bonds now authorized by this Act remain unpaid.
"Section 8. Such levies, including the valuations upon which they are to be made, may, if necessary, be made by or under the order of any court having jurisdiction to enforce the payment of said bonds, or of any judgment thereon against the District. Service in any action or proceeding against the District in relation to such bonds, may be made upon any member of the Governing Board of such District as now or hereafter constituted, or upon any executive officer of the State performing any of the duties who is now or may hereafter be ex officio a member of said Board.
"Section 9. Additional legislation will, if necessary, be enacted to assure to the purchasers and holders of the bonds hereby authorized, the sufficiency of the taxing power and the complete security of such bonds intended to be assured by this Act. No legislation will be enacted which will in any way impair such security.
"Section 10. Bonds issued or to be issued by Everglades Drainage District shall be eligible as security for the deposit of moneys of the State of Florida, counties, municipalities or districts, and such bonds shall be authorized investments for all trust funds created or operating under the laws of Florida and also for executors, administrators and guardians.
"Section 11. This Act shall be deemed complete in itself, except in so far as other Acts are specifically made applicable, nor shall powers hereby granted be restricted or limited by any other law.
"Section 12. All laws and parts of laws in conflict with the provisions of this Act are hereby repealed.
"Section 13. If any section or part of section of this Act shall be declared invalid, the remaining sections or parts of sections shall not be affected thereby.
"Section 14. Nothing herein shall prevent the Legislature from levying taxes for the administration, operation or maintenance of the Everglades Drainage District.
"Section 15. Nothing herein shall alter or repeal Chapter 8412, Laws of Florida of 1921, entitled 'An Act to authorize and provide for the levy, assessment and collection of an annual maintenance tax on all real and personal property within the Everglades Drainage District of Florida.'
"Section 16. Nothing herein shall impair the power of the Trustees of the Internal Improvement Fund of the State of Florida to sell lands and/or to take mortgages in part payment therefor, and/or to extend, renew, satisfy or cancel such mortgages.
"Section 17. The Board of Commissioners of Everglades Drainage District shall adopt rules and regulations covering the making of valuations, the levy and payment of taxes, the creation and maintenance of sinking funds, and all other matters affecting the proceedings under this Act. Such rules and regulations shall be approved in writing by the Attorney General.
"Section 18. This Act shall take effect immediately upon its passage and approval by the Governor or upon becoming a law without such approval."
"RULES AND REGULATIONS OF BOARD OF COMMISSIONERS OF EVERGLADES DRAINAGE DISTRICT
"ADOPTED under House Bill No. 290, Chapter 12016, Laws of Florida, approved April 28, 1927, entitled, 'AN ACT to Authorize the Issuance of Additional Bonds of the Everglades Drainage District of Florida, and to Provide for the Payment of such Bonds.'
1.Before issuing any bonds under such Act, the Board shall determine the full and just value of the several parcels of real property in the district, including the lands now held by the Trustees of the Internal Improvement Fund, and any lands heretofore or hereafter bought in for taxes by them, whether or not such lands are subject to redemption, and the lands and right of way of all railroads and other public utilities in the district. The values found shall be the fair market values at the time of the valuation. The Board shall immediately make its determination of such valuations and shall prepare and file such valuations in the office of the Clerk of the Circuit Court of each county in the district. Notice that such valuations have been made and are on file at the office of the Clerk of the Circuit Court, and that the Board will meet in the City of West Palm Beach on a named date to hear all persons objecting to such valuations, or interested therein, shall be published in each county in such district, the first publication in each newspaper being at least thirty days and not more than forty days prior to the date of such hearing. The Board shall hold such hearing at the time and place designated. It may reduce any valuation theretofore made to the end that such valuation shall represent the fair market value of each parcel of real property in the district. The Board shall finally determine all valuations and file the valuations so determined in the office of the Clerk of the Circuit Court in each county in the district. The same procedure shall be followed on subsequent valuations, including any valuations which may be made by or under order of any court.
2.
The Board may make levies based on any such valuations at any time within twelve months after the date on which it is filed. The same procedure shall be followed in publishing notice of such levies and holding hearings thereon as is required in the case of valuations. Provided, that the levies may be made with the valuations and one notice and one hearing given both on valuations and levies.
The Board may correct any errors in the amount of apportionments of such levies, but such levies shall be uniform, based on the valuations as finally determined, and shall be sufficient in amount to produce the moneys necessary for the prompt payment of interest and principal of said bonds, including contributions to sinking funds under Article 6 of these Rules and Regulations.
3.
In the event of any delay in the payment of any levies made on the lands of the Trustees of the Internal Improvement Fund, as above recited, the Board shall call upon such Trustees to provide for such payment out of funds in hand, and if no such funds are in hand, the Board shall join with the Trustees in requesting an appropriation by the State as required by such Act.
4.
Whenever any lands are to be sold for taxes under such Act, the Secretary of the Board shall notify the Trustees of the Internal Improvement Fund of such sale and of the amounts of such taxes, with costs, charges, interest and penalties, if any, and shall call upon such Trustees to buy in such lands at such tax sale, and to immediately pay the amount of such taxes, costs, charges, interest and penalties. If no funds are on hand for such payment the Board shall join with the Trustees in requesting an appropriation for such purposes, but the Board may accept notes of the Trustees payable out of the proceeds of the redemption of such lands or of the sale of other lands held by such Trustees, in lieu of cash on such tax sales.
5.The Board shall make a list of all lands in the district held by the Trustees of the Internal Improvement Fund and of all mortgages on land in the district held by the Trustees, and shall arrange with the Trustees for the payment to the Board of all moneys received on such lands and mortgages, excepting only the moneys payable to the State School Fund and the moneys paid for taxes and to buy in the lands under Section 2 of said Act. It shall arrange with the Trustees to secure the liquidation of such mortgages, so far as may be, without loss of either principal or interest, requiring interest and taxes on mortgaged lands to be promptly paid, and turning over the net proceeds to the sinking fund for such bonds.
6.
If any of the bonds authorized by said Act shall be made payable serially in substantially uniform or graduated maturities, the Board shall levy each year an amount sufficient, with the proceeds of the acreage tax, to produce the principal and interest to fall due during the succeeding year. For the payment of any other bonds issued under such Act, the Board shall create and maintain an adequate sinking fund for their payment. The State Treasurer shall each year as of January 1st, determine the cash in such sinking fund and appraise the securities therein at not exceeding par, and certify to the Board the amount of such fund and the amount, which, if thereafter annually contributed to such fund would with the fund on hand produce the principal at maturity of all such bonds outstanding, including uncancelled bonds, if any, held by the Board. The Board shall thereupon specify and fix such amounts as the amount to be levied for that year for such sinking fund, and such amount with the amount necessary for the payment of interest, crediting thereon the proceeds of the acreage tax applicable thereto, shall be levied forthwith in accordance with such Act. The Board may agree with the purchasers of such bonds, that such fund may be invested in bonds payable out of such funds and all bonds so purchased may be cancelled, and that if such bonds are not available for purchase, such fund shall be invested in bonds of the United States, or of the State of Florida, or bonds issued by any city, school district or county of the State, provided, that such bonds shall be supported by unlimited and general taxing power, and that the Board may in the first instance agree with the purchaser of Everglades Bonds, upon such reasonable safeguards in such investments as may seem necessary to protect such bonds.
7.
In order to safeguard the credit of the District, the Board may agree with the purchasers to levy taxes under such Act to create and maintain an interest fund in an amount equal at all times to one-half year's interest on the amount of bonds issued under such Act and at any time outstanding. The amount required for the creation of such interest fund may be set apart in the first instance out of proceeds of bonds.
8.
All bonds of the District shall be issued under resolution of the Board and they shall be executed in the name of the Board by each member thereof and all coupons thereto attached shall be executed by fac simile signatures of the Chairman and Secretary of the Board.
9.
Such bonds shall recite the fact that the State by such Act has agreed that the ad valorem taxes, levied under such Act, will be paid out of funds in hand or to be appropriated by the State for such purpose, on all State-owned lands held by the Trustees of the Internal Improvement Fund, including lands bid in on tax sales by such Trustees, or in their name, whether or not such lands are held subject to redemption, and that when lands are sold for such taxes under such Act, they will be bid in by such Trustees, in the absence of other satisfactory bidders for the amount of such taxes to be paid out of funds in hand or to be appropriated by the State for such purpose, but such bonds shall not in any way recite or imply that they constitute bonds of the State of Florida.
10.
These Rules and Regulations may be amended by the Board of Commissioners, at any time, but any such amendment shall be approved as to legality by the Attorney General. The effect and validity of the published notice required by the Act approved April 28th, 1927, with respect to either the valuations or levy of taxes, and hearings thereon, shall not be impaired or affected by the failure to publish such notice in any one or more counties of the district, or by any error or omission in any notice as published, provided that such notice as in fact published in one or more newspapers published and circulating in the district, at least thirty days prior to the hearing, shall correctly state the facts required by the Act and the time and place of hearing. No valuation or levy made, and no bonds issued or other act or thing done in substantial compliance with such Act shall be invalidated or impaired by any error or omission with respect to anything required by these Rules and Regulations or by any error or omission which is not in substantial conflict with such Act."
By treaty of cession dated February 22, 1819, the Kingdom of Spain ceded to the United States in full property and sovereignty all territories known as East and West Florida, there being excepted from the property rights ceded only those grants of land in the territories made by Spain before January 24, 1818, to "owners in possession," who shall fulfill "all the conditions of their grants within the time limited in the same, in default of which the said grants shall be null and void." All lands, whether owned by the United States or other parties, became subject to the sovereignty and law of the United States in 1821. Under the cession from Spain the United States became the owner of all the lands under navigable waters and tide lands as well as all uplands including "swamp and overflowed lands," that were not covered by the grants excepted in the treaty of cession. The excepted grants were ascertained and confirmed by Federal authority. By Act of Congress, approved March 3, 1821, the territories of East and West Florida were formed into the territory of Florida, and on March 3, 1845, the State of Florida was by Act of Congress, admitted into the Union on equal footing with the original States. Upon becoming a sovereign, the State of Florida assumed the title to all the lands under navigable waters and tide lands within its boundaries, the United States and other owners retaining their respective upland titles, the same being then subject to the State sovereignty and laws, and to the paramount authority of the United States within organic limitations. By Act of September 28, 1850, the Congress granted to the State "the whole of the swamp and overflowed lands" in the State that were unsold, the fee simple title to the lands to vest when a patent therefor should be issued as prescribed in the Act. See Little v. Williams, 231 U.S. 335, 34 Sup. Ct. Rep. 68; Martin v. Busch, 93 Fla. 535, 112 So.2d 274.
This grant was made to the State to enable it "to construct the necessary levees and drains to reclaim the swamp and overflowed lands" granted to the State, such lands or their proceeds to "be applied, exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid." The obligation of the State to apply the lands for the purposes stated in the granting Act of Congress of September 28, 1850, rests in the sovereign relations of the United States and the State. Trustees Internal Improvement Fund v. Root, 63 Fla. 666, text 683, 58 So.2d Rep. 371; Everglades Sugar Land Co. v. Bryan, 81 Fla. 75, text 84, 87 So.2d Rep. 68; Mills County v. Burlington M. R. R. Co., 107 U.S. 557, 2 Sup. Ct. Rep. 654; 22 R. C. L. 335.
Pursuant to the Act of Congress of September 28, 1850, the State of Florida has received patents to more than 20,000,000 acres of swamp and overflowed lands. Subsequent to the enactment of Chapter 610, chiefly in 1879 and later years, large legislative grants of such lands were made to railroad and canal companies to secure transportation facilities and consequential improvement and development of the lands. Soon after the beginning of the legislative practice of making large grants of swamp and overflowed lands to railroad companies as in Chapter 3167 and Chapter 3335, Laws of Florida, Governor Bloxham secured the enactment of, and himself approved, March 4, 1881, Chapter 3326, Laws of Florida, providing "that any and all grants of lands other than the alternate sections within the usual six-mile limit made or that may be made by an Act passed, or to be passed at the present session of the Legislature, shall be subject to the rights of all creditors of the Internal Improvement Fund, and to the trusts to which said fund is applicable and subject under the Act approved January 6, 1855, and entitled 'AN ACT to provide for and encourage a liberal system of internal improvements in this State,' and subject to control, management and sale and application of said fund and the lands constituting the same by the Trustees of the Internal Improvement Fund, for the purposes of said trust under said Act."
This law was re-enacted and extended as Section 440, Revised Statutes, 1892; Section 628, General Statutes, 1906; Section 1077, Revised General Statutes, 1920. See Section 1408, Compiled Laws, 1927.
One patent, known as Everglades Patent, No. 137 ( 90 Fla. 452, 457, 108 So.2d 191), was issued to the State in April, 1903, covering unsurveyed swamp and overflowed lands described by metes and bounds of "an estimated area of two million eight hundred and sixty-two thousand, two hundred and eighty (2,862,280.00) acres," the lands being contiguous to and largely south of Lake Okeechobee, a navigable fresh-water lake in the southern part of the State of Florida.
The Constitution of 1838-9, framed for the then future State of Florida, and promulgated at St. Joseph, on the Gulf Coast of Florida, on January 11, 1839, which was subsequently ratified at a territorial election, and became the Constitution of the State of Florida upon its admission into the Union as a State March 3, 1845, contained the following: "A liberal system of internal improvements being essential to the development of the resources of the country, shall be encouraged by the government of this State, and it shall be the duty of the General Assembly, as soon as practicable to ascertain by law, proper objects of improvement in relation to roads, canals and navigable streams, and to provide for a suitable application of such funds as may be appropriated for such improvements." Sec. 2, Art. XI The same organic provision in substance appears in the Constitutions of 1861 and 1865. Chapter 332, Acts of 1851, and Chapter 496, Acts of 1853, relating to the swamp and overflowed lands of the State, were enacted prior to Chapter 610, Laws of Florida, approved January 6, 1855, which latter Act provides for the management and disposition of the swamp and overflowed lands belonging to the State under the Act of Congress of September 28, 1850. By the latter statute, enacted under the Constitution of 1838-9, the lands were vested in the Governor and four other State officers and their successors in office as Trustees of the Internal Improvement Fund, with stated powers and duties with reference to the swamp and overflowed lands, one of the provisions being that such trustees shall "make such arrangements for the drainage of the swamp or overflowed lands, as in their judgment may be most advantageous to the Internal Improvement Fund, and the settlement of the land." This and other provisions of Chapter 610, Acts of 1855, have been continued in force by re-enactment. See Rev. Stats. 1892, Secs. 428, 432, et seq.; Gen. Stats. 1906, Secs. 616, 620, et seq.; Rev. Gen. Stats. 1920, Secs. 1054, 1070, et seq.; Compiled Laws, 1927, Secs. 1384, 1401.
Predicated upon the provisions as to the swamp and overflowed lands and as to the powers and duties conferred upon the Trustees of the Internal Improvement Fund, under Section 16, Chapter 610, and Chapter 3326, Laws of Florida, the Legislature by enacting Chapter 5377, Acts of 1905, made provision for drainage operations by the Trustees of the Improvement Fund as a Board of Drainage Commissioners. The validity of this Act was contested and it was amended by Chapter 5709, Acts of 1907, by which a drainage district was created in the Everglades territory covering much more lands than the Everglades Drainage District now contains. Chapter 6456, Acts of 1913, established the Everglades Drainage District, defined its boundaries covering less territory than was in the district formed by Chapter 5709, Acts of 1907, and levied a graduated acreage tax for the drainage operations to be prosecuted by a "Board of Commissioners of Everglades Drainage District," composed of the State officers who are the "Trustees of the Internal Improvement Fund," under Chapter 610, Acts of 1855; Rev. Gen. Stats. 1920, Sec. 1055; Compiled Laws 1927, Sec. 1385.
Acts of the Legislature relating to the Internal Improvement Fund and to reclamation of the Everglades, and the drainage of swamp and overflowed lands are as follows:
Chapter 332, Approved January 24, 1851;
Chapter 496, Approved January 10, 1853;
Chapter 610, Approved January 6, 1855; Internal Improvement Fund;
Chapter 3639, Acts 1885, Providing for Committee to Investigate Drainage Matters;
Chapter 5377, Acts 1905, Original Everglades Drainage Bill;
Chapter 5709, Acts 1907, Amending Chapter 5377, Fixing Boundaries and Taxes;
Chapter 6452, Acts 1913, Sale of Lands by Trustees;
Chapter 6453, Acts 1913, Trustees to Borrow Money for Drains;
Chapter 6454, Acts 1913, Board of Drainage Commissioners to Borrow;
Chapter 6456, Acts 1913, Boundaries and Acreage Tax Established;
Chapter 6957, Acts 1915, Zones and Tax Changed; Bonds;
Chapter 7303, Acts 1917, Drainage Tax Certificates;
Chapter 7305, Acts 1917, Taxation and Bonds;
Chapter 7861, Acts 1919, Sale Reclaimed Lands, not Swamp and Overflowed;
Chapter 7862, Acts 1919, Boundaries Restated, Zones and Taxes Changed; Bonds;
Chapter 7863, Acts 1919, Lists of Lands to Counties for Taxation;
Chapter 7864, Acts 1919, Sale of Lands Covered by Tax Certificates;
Chapter 7865, Acts 1919, Canals and Rights-of-Way, Condemnation;
Chapter 7866, Acts 1919, Sub-Drainage District within Everglades Drainage District;
Chapter 7891, Acts 1919, Sale Reclaimed Lands;
Chapter 7892, Acts 1919, Land Surveys Validated;
Chapter 7943, Acts 1919, Fire Protection in Everglades;
Chapter 7944, Acts 1919, Lock in West Palm Beach Canal;
Chapter 8412, Acts 1921, One Mill Ad Valorem Maintenance Tax;
Chapter 8413, Acts 1921, Zones and Acreage Tax Changed; Bonds;
Chapter 8414, Acts 1921, Fire Protection in Everglades;
Chapter 8442, Acts 1921, Experiment Station in Everglades;
Chapter 8525, Acts 1921, Trustees May Exchange Lands;
Chapter 8558, Acts 1921, Canal Right-of-Way, Condemnation;
Chapter 8559, Acts 1921, Bonds Validated;
Chapter 8560, Acts 1921, Contracts and Bonds Validated;
Chapter 9119, Acts 1923, Zones and Acreage Tax Changed;
Chapter 9131, Acts 1923, Redemption Lands Sold for Taxes;
Chapter 9132, Acts 1923, Transfer to Trustees Certain Drainage Tax Certificates;
Chapter 9289, Acts 1923, Sale or Lease for Oil, Gas, or Mineral Purposes;
Chapter 9290, Acts 1923, Validation Drainage Tax Certificates;
Chapter 10024, Acts 1925, Sale Unredeemed Lands;
Chapter 10026, Acts 1925, Boundaries Fixed, Zones and Tax Changed; Bonds;
Chapter 10027, Acts 1925, Bonds and Redemption;
Chapter 10110, Acts 1925, Obstruction Canals Prohibited;
Chapter 10113, Acts 1925, Penalty for Fire;
Chapter 10114, Acts 1925, Penalty Damaging Drainage Works;
Chapter 10116, Acts 1925, Board Fire Control;
Chapter 10121, Acts 1925, Hollywood Drainage District Annexed;
Chapter 10161, Acts 1925, Sale of Moss by Trustees;
Chapter 12003, Acts 1927, Validation of Districts and Bonds;
Chapter 12006, Acts 1927, Bonds Partly Payable by Ad Valorem Tax;
Chapter 12016, Acts 1927, Additional Bonds and Ad Valorem Tax;
Chapter 12017, Acts 1927, Zones and Acreage Taxes Changed;
Chapter 12024, Acts 1927, Liability for Fires;
Chapter 12429, Acts 1927, Lease Sovereignty Lands for Oil.
WHITFIELD, J. (after stating the facts):
The appeal in each case is from an order overruling a demurrer to a bill of complaint brought by a tax payer to enjoin the issue of bonds by the Board of Commissioners of the Everglades Drainage District and also to enjoin the levy of taxes to pay the bonds as authorized by Chapter 12016, Acts of 1927, the contention being that Chapter 12016 violates stated provisions of both the State and the Federal Constitutions.
The Everglades Drainage District was formed by Chapter 6456, Acts of 1913, which chapter supplemented Chapter 5709, Acts of 1907. Bonds were issued and an acreage tax has been levied and collected on the lands to be drained. See Chap. 120, Acts 1927, amending previous statutes. Under Chapter 8412, Acts of 1921, a one mill maintenance tax was levied on all property in the district. From these sources the funds used in the drainage operations have been received. The validity of the district and of the acreage tax have been adjudicated. Lainhart v. Catts, 73 Fla. 735, 75 So.2d Rep. 47; Bannerman v. Catts, 80 Fla. 170, 85 So.2d Rep. 336; Berry v. Hardee, 83 Fla. 531, 91 So.2d Rep. 685. The maintenance tax levied by Chapter 8412, Acts of 1921, was held valid in Richardson v. Hardee, 85 Fla. 510, 96 So.2d Rep. 290. The contest here is as to the levy of an ad valorem assessment under Chapter 12016, Acts of 1927, for additional drainage funds. The assessment made under Chapter 12016 for 1927 in 1/5 of a mill on the dollar ad valorem tax on all the real property in the district, the collections to be used for paying interest and principal of bonds to be issued to raise funds for purposes of drainage; and such tax may be regarded as being in the nature of a special assessment for benefits.
Chapter 12016, Acts of 1927, copied in full in the statement, authorizes the Board of Commissioners of the Everglades Drainage District "to issue negotiable bonds of the District in amount of Twenty Million ($20,000,000.00) Dollars in addition to bonds now outstanding, in order to complete the work for which said district was created."
Section 2 of the Act appropriates "for the payment of such bonds, proceeds of the acreage taxes heretofore or hereafter levied in such district, over and above the amounts which the Board may use for payment or redemption of bonds now outstanding and payable exclusively out of such acreage taxes. As further security for the sole purpose of paying or redeeming bonds authorized by this Act, there is hereby authorized, levied and assessed, beginning with the year 1927, an annual ad valorem tax, or a tax from time to time, on the real property in such district, additional to such acreage or drainage tax, in such amount or amounts as shall be necessary for the payment of such bonds."
"Section 7. It is hereby determined that the benefits to the territory included in the Everglades Drainage District from the completion of the work for which the District was created, will exceed the cost of such completion to be financed by the issuance of such bonds, and that the tax authorized by this Act, additional to the acreage or drainage tax heretofore levied, is in proportion to the benefits from such works to the several parcels of real estate within the District, including the lands held by the Trustees of the Internal Improvement Fund. The assessment of such tax shall not be impaired nor the levies thereof restricted, so long as any of the bonds now authorized by this Act remain unpaid."
Chapter 12016, Acts of 1927, is asserted to be invalid on numerous grounds, which need not be discussed in detail. The provision of Section 2 of the Act that the lands within the drainage district held by the Trustees of the Internal Improvement Fund shall be subject to the taxes imposed by the Act and that the Trustees shall pay such taxes out of funds in hand "or to be appropriated by the State for such purposes," can, as to the provision quoted, lawfully have reference only to funds derived from the swamp and overflowed lands that were by Chapter 610, Acts of 1855 (Sections 1054-1055, et seq. Rev. Gen. Stats. 1920), vested in the Trustees of the Internal Improvement Fund, and it is here held that such is the proper interpretation of that provision of the Act.
There may be lands belonging to the Internal Improvement Fund that are not in the Everglades Drainage District, and there may also be assets of the Internal Improvement Fund that are not "funds in hand" of the Trustees of the Internal Improvement Fund. If so, the words "or to be appropriated by the State for such purposes" contained in Sections 2 and 4 of Chapter 12016, must be construed to have reference to such lands and assets of the Internal Improvement Fund that may "be appropriated by the State for" the purpose of paying the special assessment ad valorem tax authorized by the statute to be levied on the Internal Improvement lands in the district or that may "be appropriated by the State for" the purpose of buying in lands in the district that are sold for the non-payment of the ad valorem drainage tax under the statute. Otherwise, the word "or to be appropriated by the State for such purposes" that are contained in Sections 2 and 4 of Chapter 12016, would be inoperative and should be regarded as eliminated from the statute. The words "or to be appropriated by the State for such purposes" as they appear in Sections 2 and 4 of Chapter 12016, cannot place upon the State any obligation whatsoever, legal or otherwise, to appropriate any money, funds or assets of any nature from the State treasury, except those arising from the use or sale of the swamp and overflowed lands that were vested in the Trustees of the Internal Improvement Fund as Trustees for drainage and other trust purposes by Chapter 610, Acts of 1855, when the Constitution of 1838 was in force and prior to the adoption of the Constitutions of 1868 and 1885. The words "to be appropriated by the State" are construed to mean, "to be appropriated by the Legislature of the State," and to refer to appropriations from the assets of the Internal Improvement Fund as pointed out in this opinion, which would in no wise violate the provisions of the Constitution. Any other interpretation would render the quoted provision repugnant to Section 6, Article IX of the State Constitution of 1885, relative to the issue of State bonds. The bonds authorized to be issued by Chapter 12016, Acts of 1927, are obligations of the Everglades Drainage District and not of the State of Florida. The State is in no way whatever bound to pay the principal or the interest on the bonds and the State cannot directly or indirectly pay such bonds by State taxation without violation of Section 6, Article IX of the State Constitution. Likewise the provision of Section 4 of the Act that the Trustees of the Internal Improvement Fund shall, in the absence of other satisfactory bidders, buy in any lands sold for the non-payment of the tax, using any funds in hand, "or to be appropriated by the State for such purposes," can, as to the part thereof last quoted, lawfully have reference only to the swamp and overflowed lands or their proceeds held by the Trustees of the Internal Improvement Fund. The payment of taxes with State funds, other than assets of the Internal Improvement Fund, for the purchase of lands sold for non-payment of drainage taxes, would in effect be the payment by the State of the principal and interest of the bonds to be issued by the Everglades Drainage District. In view of the limitations contained in Section 6, Article IX, of the State Constitution, as interpreted by the Supreme Court of Florida, the State cannot legally in any form or manner, either directly or indirectly or contingently pay or be obligated to pay the whole or any part of the principal or the interest of the bonds authorized to be issued by the Everglades Drainage District. The bond obligation is that of the district alone, though the drainage operations are by virtue of the statute conducted by State officials who under Chapter 610, Acts of 1855, are ex officio Trustees of the Internal Improvement Fund and who, under Chapter 6456, Acts of 1913, constitute the Board of Commissioners of the Everglades Drainage District. The swamp and overflowed lands granted to the State by Act of Congress of September 28, 1850, to be used as far as necessary for drainage purposes, were by the Legislative Act of 1855, Chapter 610, placed in a "distinct and separate fund," in trust for drainage and other purposes; and this was the status of such fund when the Constitutions of 1868 and 1885 were adopted.
The provision of Section 4, Chapter 12016, that "such taxes from date of assessment shall have the force and effect of a judgment and execution at law against the owner of such property," is inoperative to bind the State or to deprive persons of property without due process of law; and the provision may be regarded as eliminated.
The statute cannot and does not pledge or loan the credit of the State to the Everglades Drainage District and therefore, does not violate Section 10, Article IX of the State Constitution. Section 10 of the Act relating to the use of the bonds as security for depositors of public funds and for investment of trust funds, etc., may be regarded as eliminated since it is not germane to or properly connected with the subject expressed in the title of the Act. See Carr v. Thomas, 18 Fla. 736.
If Sections 8, 9, and 11 or any part thereof be adjudged to be invalid, such invalid section or sections or part or parts thereof may be inoperative without affecting the remainder as an effective law. The same may be said of any other provision that is not essential to the main purpose of the enactment. Other provisions of the Act that are specifically asserted to be invalid, appear to be properly connected with the one general subject that is briefly expressed in the title of the Act; and it is not made to appear that any challenged portion of the Act not herein specifically discussed and adjudicated, is violative of any identified provision of organic law. The title of the Act is sufficient to express a single subject and is not in any way misleading as to its valid provisions.
The Everglades Drainage District is a statutory subdivision of the State for special governmental purposes. It embraces a large portion of each of several counties, and the administration of its governmental affairs is wholly distinct from the government of the several counties. The provisions of Chapter 12016 that are sustained, are not repugnant to provisions of the Constitution relating to the duties of county officers.
It is competent for the legislature, as an incident to the formation of a taxing district for governmental purposes to impose administrative duties upon State or other officers to effectuate the objects of the district, there being no express or implied organic provisions to the contrary. See State ex rel. v. Fearnside, 87 Fla. 349, 100 So.2d 256.
As the drainage operations are designed to benefit the lands in the district the legislature had the power to levy the special assessment ad valorem tax upon the real property in the district without including personal property, and Section 1, Article IX of the Constitution, relating to general taxation, is not violated.
The ad valorem tax authorized by Chapter 12016 is not double taxation; nor is it an unlawful delegation of the taxing power. It is a provision to pay for bonds issued to raise additional funds within definite limitations to effectuate a governmental improvement, the benefits to the property assessed being determined by a statute that has a basis in existing facts and reasonable expectations and not predicated upon mere vague conjecture or prophesy.
The essential portions of the statute authorizing bonds to be issued, and providing for an ad valorem tax if necessary to pay the bonds, not being invalid, the complainant, to get any relief, must clearly show that its property is unlawfully included in the district or is otherwise illegally assessed under the statute. The validity of the drainage district is not in question.
All forms of special assessments for local public improvements or facilities must have fair relation to benefits that reasonably may be expected to accrue to the value or to the uses of the property so specially assessed; and such special assessments must not, by reason of arbitrary action or unjust discrimination or otherwise, violate the due process or equal protection or other provisions of organic law. Where the public improvements contemplated and the method of the special assessments and the anticipated benefits are determined by direct legislative enactment, such determinations will not be disturbed by the courts unless an abuse of power or purely arbitrary and oppressive action is clearly shown in appropriate proceedings duly taken by parties who have not acquiesced in the action taken and have not abandoned or waived their rights and who are otherwise entitled to complain. Administrative determinations under legislative authority as to improvements to be made and as to the method, rate or amount of special assessments to be imposed, or as to contemplated benefits to, and the apportionment of burdens on, the property so specially assessed, are not conclusive; but such administrative determination, when regularly made, will be given due weight and consideration by the courts in determining by appropriate procedure duly taken, whether the authority conferred has been properly exercised and whether private rights have been unlawfully invaded.
All lands in a duly and fairly formed drainage district may be specially assessed for drainage purposes if they reasonably may be benefited directly or indirectly by drainage operations; and no land in the district is exempt from a just special assessment merely because it may not receive a direct or an exactly equal benefit from the drainage, where no arbitrary rule resulting oppressively has been applied.
While special assessment ad valorem taxes levied upon lands in special taxing districts formed by the Legislature for public improvements as well as special assessments made by municipalities under statutory authority upon abutting property for street improvements, should in any case have just relation to benefits that may reasonably be expected to accrue to the property that is assessed, there are material differences in the scope and purposes of the two classes of assessments that may require the application of somewhat different principles of law within controlling limitations. In a street or other similar public improvement or facility where abutting or contiguous property only is specially assessed to pay for the public improvement or facility, the special assessments should not exceed the benefits resulting directly, specially and peculiarly to the property specially assessed, and the special assessments should be fairly apportioned as between those who should pay for the public improvement, and the improvement contemplated should be reasonable in view of all pertinent conditions affecting its use.
Where a special taxing district is formed for local improvements, the special assessments may extend throughout the district and are usually much less burdensome and the benefits are more general and indirect. The taxing district system of special assessments contemplates a wider and more general distribution of the assessment burden, having relation to ultimate general public benefits and advantages to the district as a whole. In this, as in all other cases, the improvement contemplated should be reasonable and appropriate for a lawful public purpose and the special assessment as made should be reasonable in amount and fairly apportioned according to benefits. Good faith and substantial justice and not exact equality of benefits and burdens are required.
Lands in a drainage district abutting the area to be drained, might to some extent be more directly benefited by the drainage than are other lands not so contiguous; but all lands within an area that reasonably may be directly or indirectly benefited by the drainage, as well as the area to be drained, may be formed into a taxing district and may justly be required to bear their fair proportions of a reasonable special tax burden to pay for an improvement designed for a common benefit in the district. The amount of the special assessment should not substantially exceed the benefits that reasonably may be expected to accrue to the property specially assessed; and the assessment as made should not be arbitrary or unjustly discriminating in view of all pertinent conditions; and the benefits to the property assessed should have a reasonable basis in existing facts or reasonable expectations and should not rest upon mere vague conjecture or prophecy. In the absence of arbitrary action or other abuse of power, it is within the law-making discretion to determine the limits of the taxing district, and the method of assessing and apportioning the burden that is imposed for the common benefit of the district considered as an entirety. A reasonable ad valorem tax upon just valuations may be imposed by legislative authority upon lands in a taxing district for drainage purposes, where the project is of such a nature that a common public benefit that is more or less peculiar to the district reasonably may be anticipated from drainage operations. It is not essential that all the lands in a drainage district shall receive a direct benefit from the drainage commensurate with the tax burden, nor is it material that lands not in the taxing district may also be benefited, where there is no arbitrary inclusion or exclusion of lands in forming the district, and no arbitrary imposition or apportionment of the tax burden, and no illegal or arbitrary or unreasonable action in the exercise of the power or authority in levying the tax or in the plan or prosecution of the drainage operations. The benefits in a taxing district may be general, indirect and prospective.
Where a local public improvement or facility is directly or indirectly, but peculiarly though incidentally or generally, beneficial to a local community or to a particular portion of the State or of a county, it is within the power of the Legislature by valid enactment to formulate a special taxing district including therein property that reasonably may be benefited generally or incidentally by the contemplated local improvement or facility, and to levy a reasonable tax upon all the real estate included in the district to pay for the local improvement or facility; and such legislative enactment will not be declared to be invalid by the courts unless the action is clearly arbitrary and oppressive and plainly violates organic rights. In the absence of a flagrant abuse of legislative power or of purely arbitrary legislative action, which invades organic property rights, the State may by statute establish drainage district and tax lands therein for local improvements; and none of such lands may escape appropriate taxation for the local improvement, solely because they will not receive direct or exactly equal benefits, where no arbitrary and oppressive action is clearly and fully shown. See Miller Lux v. Sacramento San Joaquin Drainage Dist., 256 U.S. 129, 41 Sup. Ct. Rep. 404; Valley Farms Co. of Yonkers v. Westchester County, 261 U.S. 155, 43 Sup. Ct. Rep. 261; Houck v. Little River Drainage Dist., 239 U.S. 254, 36 Sup. Ct. Rep. 58; Embree v. Kansas City Liberty Boulevard Road Dist., 240 U.S. 242, 36 Sup. Ct. Rep. 317; Cole v. Norborne Land Drainage Dist., 270 U.S. 45, 46 Sup. Ct. Rep. 196; Branson v. Bush, 251 U.S. 182, 40 Sup. Ct. Rep. 113; Missouri Pac. R. Co. v. Western Crawford Road Imp. Dist., 266 U.S. 187, 45 Sup. Ct. Rep. 31; Kansas City Southern R. Co. v. Road Imp. Dist. No. 3 of Sevier County, Arkansas, 266 U.S. 379, 45 Sup. Ct. Rep. 136; Richardson v. Hardee, 85 Fla. 510, 96 So.2d Rep. 290; Los Angeles County Flood Control Dist. v. Hamilton, 177 Cal. 119, 169 Pac. Rep. 1028; Milheim v. Moffat Tunnel Improvement Dist., 262 U.S. 710, 43 Sup. Ct. Rep. 694; Withnell v. Ruecking Const. Co., 249 U.S. 63, 39 Sup. Ct. Rep. 200; Hunter v. Owens, 80 Fla. 812, 86 So.2d Rep. 839.
In Norwood v. Baker, 172 U.S. 269, 19 Sup. Ct. Rep. 187; Myles Salt Co. v. Board of Com's of Iberia St. Mary Drainage Dist., 239 U.S. 478, 36 Sup. Ct. Rep. 204; Kimama Highway Dist. v. Oregon Short Line R. Co., 298 Fed. Rep. 431, the action taken was shown to be "palpably arbitrary and a plain abuse" of power, thereby in effect taking property without due process of law; and in Kansas City Southern R. Co. v. Road Imp. Dist. No. 6 of Little River County, 256 U.S. 658, 41 Sup. Ct. Rep. 604; Thomas v. Kansas City Southern R. Co., 261 U.S. 481, 43 Sup. Ct. Rep. 440; Road Imp. Dist. No. 1 of Franklin County, Arkansas v. Missouri Pac. R. Co., 274 U.S. 188, 47 Sup. Ct. Rep. 563; Gast Realty Improvement Co. v. Schneider Granite Co., 240 U.S. 55, 36 Sup. Ct. Rep. 254, unjust and arbitrary discrimination was shown in imposing the assessment burdens thereby denying the equal protection of the laws. See also Paul Bros. v. Long Branch and Lakeside Special Road and Bridge Dist., 83 Fla. 706, 92 So.2d Rep. 687; Consolidated Land Co. v. Tyler, 88 Fla. 14, 101 So.2d Rep. 280; Willis v. Special Road Bridge Dist. No. 2, Osceola County, 73 Fla. 446, 74 So.2d Rep. 495; Atlantic Coast Line R. Co. v. City of Gainesville, 83 Fla. 275, 91 So.2d Rep. 118; Kansas City Southern Ry. Co. v. May, 2 Fed. Rep. 2d 680; Atlantic Coast Line R. Co. v. City of Lakeland, Florida, decided June Term, 1927.
The lands included in the Everglades Drainage District (Chap. 5709, Acts 1907; Chap. 6456, Acts 1913,) are among the swamp and overflowed lands granted to the State by Act of Congress approved September 28, 1850, the granting Act, providing that "the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied, exclusively, as far as necessary, to the purpose of reclaiming said lands by means of levees and drains." See Chapter 332, Acts of 1851, and Chapter 496, Acts of 1853, for the first enactments by the State with reference to the lands granted to the State by the Act of Congress of September 28, 1850.
The obligation of the State to drain the granted lands was recognized in the enactment of Chapter 610, approved January 6, 1855, which placed the lands in a separate fund to be called the Internal Improvement Fund of the State of Florida, and vested the lands in the Governor of the State and four other named State officials and their successors in office as Trustees of the Internal Improvement Fund of Florida, in trust for the purposes defined by the statute. Section 16 of the Act provides "that the Trustees of the Internal Improvement Fund shall * * * make such arrangements for the drainage of the swamp or overflowed lands, as in their judgment may be most advantageous to the Internal Improvement Fund, and the settlement and cultivation of the lands." Sec. 1070, Rev. Gen. Stats. 1920. In furtherance of the duty and purpose to comply with the granting Act of Congress requiring the lands to be drained, the State officers and their successors in office who are by Chapter 610, Trustees of the Internal Improvement Fund with statutory powers and duties with reference to draining the swamp and overflowed lands, are by Chapter 6456, Acts of 1913, (succeeding Chapter 5377, Acts of 1905 and Chapter 5709, Acts of 1907,) made the "Board of Commissioners of Everglades Drainage District," with authority to establish and construct a system of canals, levees, dikes, draws, locks and reservoirs to reclaim the lands within the district. See other statutes listed in the statement.
The Everglades drainage improvements are governmental and extensive, having reference to surface drainage, flood control, health, sanitary, transportation, land development and common betterment, and may extend to surface irrigation and perhaps other public improvements and enterprises designed to enhance the general welfare.
The annual rainfall in that latitude is relatively very great, and the larger part of the yearly rainfall is usually in short periods, causing floods. Flood control as well as public safety and health are among the public improvements designed by the drainage operations in the Everglades Drainage District; and such improvements are necessarily beneficial to the district as a whole, affording direct or indirect benefits to all the lands in the district, by increasing the value and uses of the lands. Improved flood control, and safety, health and sanitary conditions increase the uses and value of lands upon elevations or ridges as well as other lands in the district. The need of flood control and its benefits to public safety and health and to the lands in the entire district are obvious upon a consideration of the history and conditions of the Everglades section and the adjacent territory. This has been recognized by the Federal grant of swamp and overflowed lands to the State in providing that such lands or their proceeds should be used for constructing levees and drains, which are appropriate to flood control as well as to surface drainage and other improvements.
Likewise, the State statutes contemplate the construction of "canals, drains, dikes, dams, locks and reservoirs" c., in the drainage district. Sec. 1155, Rev. Gen. Stats. 1920. Chapter 12016 authorizes bonds and the ad valorem assessment to secure additional funds "in order to complete the work for which the drainage district was formed."
The history and the well known actual conditions of a public nature affecting the controversy, of which the Court takes judicial notice, contradict the allegations that the drainage operations in the district cannot benefit complainant's lands, and the demurrer does not in legal contemplation admit such allegations to be true in point of fact.
The controversy here does not relate to an assessment against abutting property to pay for a street improvement that should be a special, peculiar and direct benefit to the abutting property at least equal to the assessment. But the contest is as to an ad valorem assessment upon all the lands in a taxing district formed by statute to provide for a public improvement that is a general and common benefit to the district as an entirety. For a general, common, public benefit to a taxing unit as a whole, lands in the taxing unit may be reasonably assessed by legislative authority even though the lands as such are not immediately or directly benefited by the public improvement, when the assessment is not an abuse of authority.
Every case of special assessments involving questions as to benefits to the property assessed should be determined by the application of appropriate rules of law to the facts then adduced.
The legislative, executive and judicial records and proceedings in this State indicate that the drainage of the Everglades and adjacent territory is a necessary and primary step in the reclamation, improvement and development of that section that will greatly enhance the value and uses of lands in that portion of the State; and further that the drainage already accomplished has greatly increased the value and utility of the lands far beyond as well as within the area that needed draining. The benefits are general and indirect to the locality at large as well as special and immediate to lands that needed drainage or to adjacent or contiguous lands. It is within the province of the law making department — the Legislature — to determine what area shall be specially assessed for drainage purposes; and a statutory determination will not be disturbed by the courts in the absence of a clear and full showing of arbitrary action or a plain abuse. Houck v. Little River Drainage Dist., 239 U.S. 254, 36 Sup. Ct. Rep. 58; Lainhart v. Catts, 73 Fla. 735, 75 So.2d Rep. 47. And even though the taxing district could reasonably have included other lands because they are also benefited, the omission of such lands from the district will not render the district or the tax levied therein illegal, in the absence of a clear showing of abuse of legislative power or arbitrary action that inevitably takes property without due process, or of unjust discrimination that denies the equal protection of the laws to property owners in the district. Where indirect benefits of a general nature may reasonably be expected to accrue to the taxing district as an entirety, particular pieces of property may not be relieved of a fair assessment merely because such property does not need drainage or is not benefited equally with other property in the district, since exact equality is not attainable as to the levy or as to the apportionment of assessments for benefits. In special assessments, reasonable determinations and substantial justice are the requisites; and a wider latitude of action is accorded to a legislature than to an administrative body. The courts do not interfere with legislative or administrative determinations of levies and apportionments of special assessments for benefits, whether the benefits be special and direct or general and indirect, unless a clear abuse of legislative power or administrative authority is duly shown, and substantial organic or fundamental property rights which have not been abandoned or waived or released are thereby violated.
The drainage of the Everglades is not a local undertaking initiated by interested parties merely to relieve the overflowed lands of surface water for the sole benefit of the lands to be drained; but the drainage being done in the Everglades Drainage District is by a State agency, under statutory authority. The drainage removes surface water, reduces the level of subsurface percolating water and makes the lands all over the district more useful for high development. The public improvement is designed for the immediate and potential permanent general benefit to the entire statutory district containing millions of acres, by making the lands both public and private that are affected by surplus water, fit for improvement and development by growing thereon fruit, vegetable and staple crops, live stock and other products, by the erection of commercial, residential and other structures, by establishing business enterprises, transportation facilities, better flood control, sanitary, health and general welfare conditions, and by making the lands in the district that are not overflowed, more accessible from and over lands to be drained, and more valuable for all useful purposes. Such development and improvement will certainly be an indirect, if not also a direct, benefit to all the lands in the district, in that the enhanced utilization of the vast area of drained lands will inevitably result in an increase of population, commercial activities, pleasure and health resorts and varied products of the entire district, with a great increase in the values of the lands and in the business conducted in the district, which increases in values and uses, with better health, transportation and general welfare conditions, will extend to residential as well as to business, producing and other properties in the district, whether some of them actually need draining or not. Los Angeles Co. v. Hamilton, 177 Cal. 119, 169 P. 1028. The bill of complaint alleges that some of the canals of the drainage operations in the district are being utilized to dispose of the surplus surface water upon complainant's and other lands in Coral Gables and Hialeah. Besides this, it appears that sloughs exist in more or less proximity to complainant's lands, which sloughs will be drained or contracted or otherwise improved and developed, and will reasonably benefit complainant's and other property though it be not a part of or contiguous to such sloughs. These and other considerations, together with the general and special benefits already accrued and accruing to the district as a whole from the drainage operations, were known to the members of the Legislature; and their law making determination as to actual and potential benefits to accrue to the district as a whole, manifestly has very substantial basis in existing facts as well as in reasonable expectation. There is no sufficient showing that any lands have been arbitrarily and by an abuse of legislative authority included in the district, or that any such lands may not reasonably be directly or indirectly benefited by the drainage operations and by the improvement, development and added use of the lands to be drained. Such development and general benefits are already demonstrated by the improvements in the district since its creation in 1907 and 1913. The territory covered by Coral Gables was in the drainage district when the city was built and the City of Miami has grown into the district. So with other cities and towns now wholly or partly in the drainage district. See statement filed herewith. Indirect benefits are conceded by the appellee. This is sufficient to sustain the ad valorem tax.
While the Everglades Drainage District is a State agency, it is utilized not for general governmental purposes, but for the public improvement of a large area comprising more than four million acres of public and private lands in the southern part of the State, for the benefit of the district as an entirety; and the acreage and ad valorem taxes imposed by statute are not general taxes for governmental purposes but are special assessments for benefits to accrue from the public improvement. Such district having been formed by a statute and the scheme of drainage and the methods of assessments, and the benefits to accrue to the whole district from the drainage, having been determined by statute, such determinations will not be disturbed by the courts at the suit of an owner of property so specially assessed, in the absence of a clear showing duly made of an abuse of legislative power resulting in an unlawful invasion of complainants' rights. Allegations that complainants' real property in the district is upon an elevated ridge several feet above the surrounding lands and does not need drainage; and that the property will not and cannot receive any benefit whatsoever from any system of drainage, are not good as against the demurrer because the Legislature has by statute determined the benefits, which may be indirect and general, and such benefits are not alone to lands that need surface drainage. A legislative determination as to benefits is not subject to mere general allegations of no benefits, at least when there are no specific allegations showing that there could have been no conceivable reasonable basis for the law making determination that benefits direct or indirect will accrue to all of the lands that are specially assessed, whether all the lands need drainage or not, and even if some lands are more elevated than others. This Court has held "The fact that such improvement may not be of direct benefit to every parcel of land within the district constitutes no just reason why it should not bear its portion of the expense incurred in the work of drainage and reclamation of the District as a whole; and the further fact that some of the lands are not overflowed, is not conclusive that they receive no benefit." Lainhart v. Catts, 73 Fla. 735, 75 Sou. Rep. 47.
"If it be essential or material for the prosperity of the community, and if the improvement be one in which all the land owners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners, by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made and the land rendered useful to all and at their joint expense. In such case the absolute right of each individual owner of land must yield to a certain extent or be modified by corresponding rights on the part of other owners, for what is declared, upon the whole, to be for the public benefit." Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 17 Sup. Ct. Rep. 56. See also Bannerman v. Catts, 80 Fla. 170, 85 So.2d Rep. 336; Valley Farms Co. of Yonkers v. Westchester County, 261 U.S. 155, 43 Sup. Ct. Rep. 261; Berry v. Hardee, 83 Fla. 531, 91 So.2d Rep. 685; Kansas City Southern R. Co. v. Road Imp. Dist. No. 3 of Sevier County, Ark., 266 U.S. 379, 45 Sup. Ct. Rep. 136. In Myles Salt Co. v. Board of Comr's of Iberia St. Mary Drainage Dist., 239 U.S. 478, 36 Sup. Ct. Rep. 204, the land was not appropriate for habitation and improvement, but it was an island of salt deposit "rising abruptly 175 feet or more," that was so situated and conditioned that it could not be benefited in any way by drainage operations, and an exorbitant tax was imposed by a subordinate body which abused its powers in including the island in the taxing district.
In Consolidated Land Co. v. Tyler, 88 Fla. 14, 101 South. Rep. 280, the taxing district was formed for the sole purpose of building a bridge, and it clearly appeared by facts shown that the complainant's land was so situated and conditioned that it could receive no real benefit from the construction of the bridge at the particular point and that the inclusion of such land in the taxing district was an abuse of legislative power that invaded complainant's organic property rights.
The contemplated benefits to all the lands in the Everglades Drainage District are not mere prophesy or speculation or conjecture, but are legislative determinations predicated upon benefits already accrued from drainage, and upon existing conditions and reasonable expectations sustained by experience and observation. See Kansas City Southern R. Co. v. Road Imp. Dist. No. 3 of Sevier County, Ark., 266 U.S. 379, 45 Sup. Ct. Rep. 136.
The object of an affirmative pleading is to state facts to which the court may apply the law in adjudicating rights. A demurrer challenges the legal sufficiency of a pleading; and for that purpose, a demurrer admits as against the demurrant the well-pleaded allegations or averments to which it is addressed. Goodman v. State, 88 Fla. 156, 101 So.2d Rep. 285. But a demurrer does not admit allegations that are not well pleaded; among them being allegations of conclusions of law, allegations of conclusions of fact not sustained by facts alleged, allegations that are contradicted by the record in the case or by other records or matters of which the court takes judicial notice, and allegations that the law does not permit to be proven. See Apalachicola Land Development Co. v. McRae, 86 Fla. 393, 98 So.2d Rep. 505, text 517; Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 89 So.2d Rep. 313; Amos v. Gunn, 84 Fla. 285, 94 So.2d Rep. 615; State ex rel. Buford v. Watkins, 88 Fla. 392, 102 So.2d Rep. 347; Brown v. Avery, 63 Fla. 355, 58 So.2d Rep. 34; Owen v. Baggett, 77 Fla. 582, 81 So.2d Rep. 888; Louisville N. R. Co. v. Palmes, 109 U.S. 244, 3 Sup. Ct. Rep. 193.
The allegations of the bill of complaint assail the validity of a statutory determination of benefits and even if all of the allegations be admitted by the demurrer, they are legally insufficient to show an abuse of legislative power in the enactment of Chapter 12016 authorizing the bond issue and the levy of an ad valorem tax upon all the lands in the Everglades Drainage District, therefore the prayer that the issue of the bonds and the levy of the tax be enjoined should not be granted, even if the allegations as to lack of benefits to complainant's lands could be regarded as sufficient in law to justify relieving the particular lands of the tax as in Myles Salt Co. v. Board, 239 U.S. 478, 36 Sup. Ct. Rep. 204, and Consolidated Land Co. v. Tyler, 88 Fla. 14, 101 So.2d 280.
The allegations of the bill of complainant cannot fairly be regarded as showing an abuse of legislative power in including in the district and in determining benefits to and authorizing an ad valorem tax upon all the lands in the district, including the particular lands of the complainant that are alleged to be upon an elevated ridge and need no drainage. The Court takes judicial notice of the history and the natural connections affecting general drainage operations in the Everglades Drainage District, which in contemplation of law afford a basis for the legislative determinations complained of.
The allegations of the bill of complaint are insufficient for any general or particular relief of the nature prayed for. The Chancellor apparently overruled the demurrer to the bill of complainant because of the allegations that a portion of complainant's land is situated upon an elevation that does not need draining and that such property cannot in any way be benefited by the drainage operations.
In A. C. L. R. R. v. City of Lakeland, 115 So., referred to by the Chancellor in making the order appealed from, the assessment was against abutting property for the entire cost of a street improvement in a city, the scheme of assessment was determined by the city authorities and not by the Legislature, and the benefits to the property assessed had to be direct and at least equal to the assessment. There a clear violation of the statute with reference to benefits and an abuse of administrative authority, were alleged in the bill of complainant and admitted by demurrer.
Here a special taxing district was formed by statute, the public improvement and the method of assessment, the amount of the bonds and the benefits to accrue to the property in the district were determined by statute, and the ad valorem assessments are little more than nominal. The benefits need not be direct, but may be indirect, incidental and general, having reference to advantages to the district as an entirety and not to immediate, direct benefits to particular parcels of property in the district. In this case the benefits having been determined by statute, such determination should not be disturbed by the courts in the absence of a clear and convincing showing that the purpose is to tax particular property without any corresponding benefit, but solely for the benefit of other property, or of a sufficient showing of other abuse of legislative power that violates organic property rights. There is no such showing here. See Withnell v. Rueching Const. Co., 249 U.S. 63.
Some at least of complainant's lands were included in the drainage district formed by Chapter 5709, Acts of 1907; and by Chapter 6456, Acts of 1913, all of the lands in the district, including that of complainants were subjected to an acreage tax; and in 1921 all the property in the district was subjected to a one mill maintenance tax used for drainage purposes. It is now rather late for a complainant to allege generally that its lands cannot be benefited by the assessments imposed for drainage purposes, particularly when there are no sufficient specific allegations conclusively showing that there could have been no conceivable reasonable basis for the legislative findings of benefits, direct or indirect, to accrue to the lands. Certainly no arbitrary and oppressive burden upon complainant's land is alleged in such a way as to overcome the force and effect of a legislative determination repeatedly expressed in statutes. The assessment as made amounts to a mere nominal sum.
The provisions of Chapter 12016, Acts of 1927, authorizing the issue of a stated amount of bonds of the Everglades Drainage District to be obligations of the district and not of the State, and authorizing the levy as necessary of an ad valorem tax upon all the real property in the district for the payment of the bonds, and the provisions of the Act that are properly incidental to such main purposes as interpreted herein, constitutes a valid exercise of legislative power under the State and Federal Constitutions, and the statute accords with the purposes of the grant by Congress of the swamp and overflowed lands to the State and with the policy of the State to drain and otherwise improve such lands.
The rules and regulations of the Board should be made to conform to this opinion, particularly Rules numbered 3, 4, and 9.
The records in the two cases contain much of the history of the Everglades drainage operations; and the briefs of counsel show exhaustive research and present most helpful discussions of the principles affecting the controversy, with voluminous useful citations of authorities.
The order overruling the demurrer to the bill of complaint is reversed in each case.
ELLIS, C. J., AND TERRELL, STRUM, BROWN AND BUFORD, J. J., concur.
PER CURIAM. —
A petition for rehearing in case No. 638, suggests in effect that the Court failed to consider (1) that the demurrer is general and if the bill of complaint contains any equity the demurrer was properly overruled: (2) that Rules 3, 4, and 9 of the regulations adopted under Chapter 12016, are held to be broader than the Act as construed and that therefore the bill contains equity; (3) Rule 9 requires the bonds to contain recitals that are held to be illegal yet the Board "is left free to issue bonds containing the very recitals which this Court has held would be invalid."
The prayer in No. 638 is in effect that the Act be declared unconstitutional; that the rules and regulations be decreed to be unconstitutional and void and of no force or effect; that the provisions of the Act and of the rules and regulations which purport to bind the State to pay or secure the payment of the bonds, or to pay taxes under the Act, or to subject to the payment of such taxes, the assets of the Internal Improvement Fund, be declared to be unconstitutional and void and of no force or effect; and that the issue of the bonds and the levy of a tax under Chapter 12016 be enjoined, and for general relief.
The Court did not hold Rules 3, 4 and 9 to be void and of no force or effect in their entirety. Some of the provisions of Rules 3 and 4 and the provision of Rule 9 that "such bonds shall not in any way recite or imply that they constitute bonds of the State of Florida," are not in conflict with the decisions in the case; and other provisions of the rules are required to be made to conform to the opinion of the Court, and the Board is not left free to issue bonds containing recitals which "would be invalid." It was held that the assets of the Internal Improvement Fund under Chapter 610, Laws of Florida, could by statute be subjected to the payment of taxes levied under Chapter 12016, that the elimination of other provisions of the latter chapter did not render the Act inoperative and that "the allegations of the bill of complaint are insufficient for any general or particular relief of the nature prayed for."
The adjudicated illegalities in separable portions of Chapter 12016 do not impair the efficiency of the valid portions of the Act; and the complainants' equity for the relief prayed is postulated upon the asserted invalidity of substantive portions of the Act that are adjudicated to be valid. Therefore an equity is not shown for the relief prayed and the general demurrer was good as against the controlling allegations of the bill of complaint.
Where the equitable relief prayed for is predicated upon alleged invalidity of a statute as an entirety and the statute is held to be valid in its essential provisions, the relief prayed may be denied or a demurrer to the bill of complaint may be sustained, even though separable portions of the statute be judicially eliminated as invalid, where the valid portions of the Act may be made effectual and in law negative the asserted equity.
Rehearing denied.
ELLIS, C. J., AND WHITFIELD, TERRELL, STRUM, BROWN AND BUFORD, J. J., concur.
PER CURIAM. —
Where the equitable relief prayed for is predicated upon alleged invalidity of a statute as an entirety and the statute is held to be valid in its essential provisions, the relief prayed may be denied or a demurrer to the bill of complaint may be sustained, even though separable portions of the statute be judicially eliminated as invalid, where the valid portions of the Act may be made effectual and in law negative the asserted equity.
Affirmed.
PER CURIAM. —
A petition for rehearing in Case No. 638, suggests in effect that the court failed to consider (1) that the demurrer is general and if the bill of complaint contains any equity the demurrer was properly overruled; (2) that Rules 3, 4 and 9 of the regulations adopted under Chapter 12016, are held to be broader than the Act as construed and that therefore the bill contains equity; (3) Rule 9 requires the bonds to contain recitals that are held to be illegal yet the Board "is left free to issue bonds containing the very recitals which this Court has held would be invalid."
The prayer in No. 638, is in effect that the Act be declared unconstitutional; that the rules and regulations be decreed to be unconstitutional and void and of no force or effect; that the provisions of the Act and of the rules and regulations which purport to bind the State to pay or to secure the payment of the bonds, or to pay taxes under the Act, or to subject to the payment of such taxes, the assets of the Internal Improvement Fund, be declared to be unconstitutional and void and of no force or effect; and that the issue of the bonds and the levy of a tax under Chapter 12016 be enjoined, and for general relief.
The Court did not hold Rules 3, 4 and 9 to be void and of no force or effect in their entirety. Some of the provisions of Rules 3 and 4 and the provision of Rule 9 that "such bonds shall not in any way recite or imply that they constitute bonds of the State of Florida," are not in conflict with the decisions in the case; and other provisions of the rules are required to be made to conform to the opinion of the Court, and the Board is not left free to issue bonds containing recitals which "would be invalid." It was held that the assets of the Internal Improvement Fund under Chapter 610, Laws of Florida, could by statute be subjected to the payment of taxes levied under Chapter 12016, that the elimination of other provisions of the latter chapter did not render the Act inoperative and that "the allegations of the bill of complaint are insufficient for any general or particular relief of the nature prayed for."
The adjudicated illegalities in separable portions of Chapter 12016 do not impair the efficiency of the valid portions of the Act; and the complainants' equity for the relief prayed is postulated upon the asserted invalidity of substantive portions of the Act that are adjudicated to be valid. Therefore, an equity is not shown for the relief prayed and the general demurrer was good as against the controlling allegations of the bill of complaint.
Where the equitable relief prayed for is predicated upon alleged invalidity of a statute as an entirety and the statute is held to be valid in its essential provisions, the relief prayed may be denied or a demurrer to the bill of complaint may be sustained, even though separable portions of the statute be judicially eliminated as invalid, where the valid portions of the Act may be made effectual and in law negative the asserted equity.
Rehearing denied.
ELLIS, C. J., AND WHITFIELD, TERRELL, STRUM, BROWN AND BUFORD, J. J., concur.
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