Opinion
May 22, 1951.
Appeal from the Circuit Court, Broward County, George W. Tedder, J.
Anderson Nadeau, Miami, and Mather Sauls, Hollywood, for appellants.
James M. Crum, Fort Lauderdale, for appellee.
Appellant instituted a Quo Warranto proceeding seeking to oust their lands from the area of the City of Hallandale as extended by Chapter 24,993, Special Acts of 1947. At the trial a verdict was directed for the respondent at the conclusion of the co-relators' case.
The trial judge made a number of rulings on certain technical objections to the manner in which Chapter 24,993 was enacted and to some of the details of the election held thereunder, which rulings we do not reverse as they are not clearly shown to have been erroneous.
Co-relators claim that their lands are unimproved, unoccupied wild, and uncultivated, are not benefited or subject to benefit by inclusion in the city, and are not actually or potentially needed or useful for municipal purposes, and have no need for any municipal services or benefits, and that inclusion in the city was for revenue purposes only and constituted an arbitrary and unlawful extension of authority over lands that will not be benefited thereby.
The testimony revealed that the City of Hallandale, a community of some 1519 residents in 1945, occupied 960 acres, all west of Federal Highway No. 1. Chapter 24,993 sought to extend the city limits over 1440 additional acres east of the highway and extending to the Atlantic Ocean. The added territory (which contained only six families as residents) included the lands (435 acres) of the co-relators, which lands have no paved roads or streets except State Road A1A, and are chiefly swamp land. The lands of Bailey, one of the co-relators, include 327 acres, of which 20% are submerged, 75% covered by water at high tide, and 95% covered by water at abnormal high tide. Most of the lands of the co-relators are practically unusable and can be made usable only by the expenditure of vast sums for diking, draining, and filling.
The Gulf Stream Race Course track (which is not a co-relator) is in the extended area and co-relators offered in evidence two ordinances of the city, one selling to the track municipal tax certificates for 1948 taxes at a discount, and the other compromising current taxes for 1949. Both of said ordinances contained recitals to the effect that "the City of Hallandale has been unable to render to the tax-payer, Gulf Stream Race Course, the usual and ordinary services and benefits," and the second ordinance in addition recited that "the City of Hallandale will be unable to render and serve Gulf Stream Race Course with the usual and ordinary benefits for a number of years to come." Objection to the exhibits was sustained.
The trial court erred in rejecting the ordinances. They were admissible as tending to prove co-relators' claim of lack of municipal benefits to be conferred upon their lands which could not possibly have been benefited as much or more than the race course. The recitals amount to findings of fact by the legislative body of the city. They are not of such nature that the Court could take judicial knowledge of their complete inaccuracy or falsity, and they were entitled to be considered by the jury, subject to explanation or factual contradiction by the respondent.
The learned trial judge in granting the motion for a directed verdict at the close of co-relators' testimony stated "I am of the opinion that the motion should be granted on the theory that it has not been shown that these lands are susceptible to the benefits which would accrue to the City of Hallandale as a whole within a reasonably short period of time."
We assume that the transcript misquoted the trial judge and that he actually said "are not susceptible". Even so, it is difficult to understand such a ruling. The co-relators' testimony was directed to showing that no possible benefits had accrued or could accrue to the land involved. There was no evidence before the Court of any "benefits which would accrue — within a reasonably short period of time". The trial court could not, sua sponte, assume that by the mere act of taking the land into the city certain undisclosed benefits must necessarily accrue in the near future and require the co-relators to affirmatively disprove the nonexistence of these unknown future benefits. In State ex rel. Davis v. City of Stuart, 97 Fla. 69, 120 So. 335, 345, 349, 64 A.L.R. 1307, this Court stated "Purely speculative and shadowy benefits, which amount to no more than a mere pretext for arbitrary action, are not to be considered."
Respondent maintains that the ouster of co-relators' lands should not be granted, inasmuch as the co-relators own only a portion of the extended area and that co-relators' remedy, if any, is in equity by injunction against the collection of municipal taxes as considered in State ex rel. Attorney General v. City of Avon Park, 108 Fla. 641 149 So. 409 and authorized in City of Sarasota v. Skillin, 130 Fla. 724, 178 So. 837.
It is true that the two above cases are authority for the doctrine that landowners who, through acquiescence or other action, or non-action, have become estopped from seeking ouster of lands from a municipality may under certain circumstances seek relief in equity against municipal taxation. However, the possibility of such equitable relief does not of itself bar land owners from seeking ouster through Quo Warranto when the facts justify the same.
This Court in State ex rel. Ervin v. City of Oakland Park, Fla., 42 So.2d 270, 272, granted quo warranto in a case almost identical with the incident one and said "The legislature is without power to create a municipality out of sunshine, bathing beaches, custard apple swamps and lowlands that have no potential value for any purpose until large expenditures are made to fill and drain them".
The fact that the co-relators do not represent all of the land annexed does not bar them from asserting their right to ouster. In State ex rel. Landis v. Town of Boynton Beach, 129 Fla. 528, 177 So. 327, ouster was granted even though the relator was only one of numerous land owners affected by the extension of the municipal area. The remaining land owners, through inertia, or inability or unwillingness to share in the cost of this litigation, or other reasons satisfactory to them, have failed or declined to participate therein as co-relators. They may later, unless otherwise barred or estopped, have the privilege of bringing similar suits, or they may desire to remain in the municipal limits. Whichever course they follow or fail to follow does not preclude the assertion of the co-relators' rights in this cause.
The co-relators introduced sufficient evidence to make out a prima facie case and the trial judge was in error in granting the motion for a directed verdict at the close of co-relators case and in denying the motion for a new trial.
Reversed.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS and ROBERTS, JJ., concur.
ADAMS, J., dissents.