text:
    Louis C. GUIDRY v. TOWN OF ST. MARTINVILLE.
    No. 4407.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.
    Writ of Certiorari Granted June 28, 1957.
    E. L. Guidry, Jr., St. Martinville, for appellant.
    Jerome A. Broussard, St. Martinville, for appellee.
   LOTTINGER, Judge.

Petitioner Louis C. Guidry alleges that he is the owner of and the possessor of Lot No. 14 of a plat of survey dated September 30, 1876, attached to and made a part of an act of sale by the Parish of St. Martin to various persons, dated October 7, 1876. He brings this suit alleging slander of title to said property by the Town of St. Martin-ville, and prays that he be quieted in his possession of the property. Petitioner further prayed, in the alternative, that should the Court find that he did not have such possession as would entitle him to bring an action in slander of title, that this suit be changed to one to establish title to the said property. The defendant filed exceptions denying that petitioner has possession of the property, and in the alternative, claims that defendant has had open and notorious possession of said property for a period in excess of thirty (30) years. The Lower Court rendered judgment maintaining the exception and dismissing petitioner’s suit. The petitioner has appealed.

The evidence shows that on October 7th, 1876, the Parish of St. Martin subdivided a tract of land situated near the western limits of the Town of St. Martinville. Said tract was divided into twenty-one (21) lots, all of which lots, with the exception of Lots 19, 20 and 21, were bounded on said plat, north, south, east and west by named streets. The said streets have never been opened, nor have they ever been used, and are not now nor have they ever been visible on the ground. The record shows that petitioner is the record owner of a certain tract of land situated within the said subdivision, containing six (6) arpents more or less, bounded north by property of Charles Paterson, south by land of Ariel Heirs, east by tract of the Morgans Louisiana Texas R. R. and S. S. Company, and west by land of C. M. Oliver. Petitioner claims that said tract contains Lots Nos. 12, 13, 14 and 18 of the said subdivision.

The record shows that Lots 12, 13 and 18 are surrounded by a fence and that the petitioner has been raising cattle on said property for a number of years. The record further shows that Lot 14 is separated from Lots 12, 13 and 18 by Claiborne Street, which Street has not been opened and is not visible. Petitioner contends that he has possessed Lot 14 by virtue of his possession of Lots 12, 13 and 18, under the provisions of Louisiana Statutes Annotated — Civil Code Article 3437 which provides as follows:

“It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.”

The defendant, on the other hand, denies that the petitioner has possessed Lot No. 14 and has submitted evidence to the effect that the Town of St. Martinville has used said Lot for a period in excess of forty (40) years as a garbage dump. The defendant claims that under the main demand in slander of title, the petitioner must be in- possession of the property, and that under the alternative demand of an action to establish title, neither party must be in possession of the property; and that as the defendant is in possession of the property, both the main demand and the alternative demand must fail. The Lower Court rejected both the main demand and the alternative demand and maintained the exception filed by the defendant, the petitioner has taken this appeal.

There is no question in our minds but that the petitioner had no intention of possessing Lot No. 14 as owner. On trial of the matter, the petitioner admitted that he-dí d not know until recently that his title included Lot No. 14. The record clearly shows that the City of St. Martinville has used Lot 14 as a garbage dump for a period of at least forty (40) years. By such use of Lot 14, we believe that the City of St. Martinville has exercised such adverse possession as would offset any constructive possession which might be claimed by petitioner under the' provisions of Article 3437 of the LSA-Civil Code. Petitioner claims that as Claiborne Street was never opened, his possession of Lots 12, 13 and 18 would be such as to include possession of Lot 14 under the provisions of Article 3437. The defendant on the other hand contends that Claiborne Street has been dedicated, and even though it has never been opened, it does run between the property so that Lot 14 is not contiguous to the other property of petitioner, and that, therefore, Article 3437 is of no benefit to the petitioner. Regardless of whether the property claimed by petitioner is considered one contiguous tract of land, or not, we feel that the type of possession shown by the defendant was of such a nature as to be open, notorious and adverse against petitioner. The property in question could not be in the possession of two (2) adverse claimants, and the evidence shows that if anyone possessed the property it was the defendant. The petitioner has cited Bruning v. City of New Orleans, 165 La. 511, 115 So. 733 and claims that said case has held that the fact that the City of New Orleans had dumped trash on property and had removed dirt therefrom, did not constitute acts amounting to possession. That case, we feel, is distinguished from the present case by the fact that in the Brun-ing Case, the City only intermittently dumped trash on the property which was adjoining the property on which the City kept its mules and parked its park equipment. There was no evidence in'that case to show that the property in question was the regular garbage dump of the City of New Orleans.

The record in the present case shows that the Lot in question was the regular garbage dump of the Town of St. Martinville and has been in continuous use for a number of years. It is apparent from the above that the plaintiff is without possession of the property in question and that the defendant is apparently in possession. According to Article 49, Louisiana Code of Practice, it is necessary in a possessory action or slander of title action that the plaintiff should have had the real and actual possession of the property at the instant when the disturbance occurred; a mere civil or legal possession is not sufficient. That he should have had that possession quietly and without interruption for more than a year previous to his being disturbed provided the possession of less than one year be sufficient, in case the possessor should have been evicted by force or by fraud. That he should have suffered a real disturbance either in fact or in law. That he should have brought his suit, at the latest, within the year which the disturbance took place. It is apparent that plaintiff cannot qualify under this Article. According to Act No. 38 of 1908 which is now incorporated as Article 74.1 of the Louisiana Code of Practice, it is prescribed that in all cases where two or more persons lay claim to land and where neither of said claimants are in the actual possession of the land so claimed, an action to establish title to real estate may be brought. It is likewise apparent that the plaintiff in this case cannot qualify under this Act in view of the apparent possession of the defendant herein. We, therefore, feel that the Lower Court was correct in maintaining the exception and dismissing the petitioner’s action.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by petitioner.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM. THORNAL, Justice.

license: Public Domain

text:
    In re ESTATE of Carrie WILLIAMSON, Deceased. Forrest HOFFMAN et al., Appellants, v. James O. MURPHY, Appellee.
    Supreme Court of Florida. Special Division B.
    Oct. 10, 1956.
    On Rehearing May 8, 1957.
    Forrest Hoffman and Askew, Wehle, Earle & Holley, St. Petersburg, for appellants.
    Ramseur, Bradham & Clark and Harris, Barrett, McGlothlin & Dew, St. Petersburg, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same hereby granted, and the judgment is is,

Affirmed.

THOMAS, Acting Chief Justice, and ROBERTS, THORNAL and BUFORD, JJ., concur.

On Rehearing

THORNAL, Justice.

Appellant Hoffman, as administrator •cum testamento annexo of the estate of •Carrie Williamson, seeks reversal of an order of the Circuit Judge affirming an or•der of the County Judge by which the latter refused to strike a claim filed by Murphy against the Williamson estate.

The principal point involved is the effect of the appointment of an administrator •cum testamento annexo upon discovery of a will subsequent to a previous appointment ■of an administrator.

The dates we mention herein are important. On May 7, 1954, appellant Hoffman was appointed administrator of the estate •of Carrie Williamson, deceased. He qualified and on June 10, 1954, filed proof of •publication of notice to creditors showing the first publication to have been made on May 13, 1954. On July 6, 1954, appellee Murphy filed a relatively small claim against the estate for services performed for the decedent. On July 26, 1954, Hoffman, as administrator, filed a petition to the County Judge whereby he presented .an instrument purporting to be the will of Carrie Williamson. The will was admitted to probate. The County Judge thereupon appointed Hoffman administrator cum tes-tamento annexo of the estate and revoked the letters of administration issued on May 7, 1954. Upon his appointment as administrator cum testamento annexo, Hoffman then published another notice to creditors and filed proof showing first publication thereof on July 31, 1954. On March 1, 1955,-Murphy filed a new claim against the estate. It is important to note that this was not an amendment of the original claim. It was an entirely new claim in the amount of $101,810.25 for damages for alleged breach of an agreement to make a will. On April 22, 1955, Hoffman, as administrator cum testamento annexo, and the beneficiaries under the will filed a motion to strike the claim of Murphy which had been filed on March 1, 1955. Upon hearing the motion to strike,' the County Judge overruled the motion and denied the objections to the claim. An appeal to the Circuit Court resulted in an affirmance of the order of the County Judge. Reversal of this order of affirmance by the Circuit Judge is now sought by this appeal.

Appellant Hoffman, as administrator cum testamento annexo, contends that the publication of the second notice to creditors is merely surplusage, that Murphy was bound by the first notice to file any claim he had against the estate within eight months from May 13, 1954, the date of the original publication. The conclusion is tendered that the second claim filed by Murphy was barred by our statute of non-claims.

It is Murphy’s contention that the appointment of Hoffman as administrator cum testamento annexo was the equivalent of opening an entirely new administration proceeding, that Hoffman by the second notice to creditors invited the filing of further claims and that, therefore, his second claim was timely filed.

We find no provision of our Probate Act which concludes the point under consideration. Section 733.15, Florida Statutes, F.S.A., provides in substance that every personal representative after taking out letters testamentary or of administration shall cause a notice to creditors to be published once each week for four consecutive weeks. Section 733.16, Florida Statutes, F.S.A., which is our so-called statute of nonclaims, provides in part that any claim not filed with the County Judge “within eight month's from the time of the first publication of the notice to creditors shall be void”. Section 732.44(7), Florida Statutes, F.S.A., provides for the appointment of an executor or administrator cum tes-tamento annexo with revocation of letters of administration upon discovery of a will subsequent to the granting of letters of administration.

Strangely enough there are no controlling precedents governing the disposition of the problem at hand. Very thorough and well-prepared briefs of counsel for both parties fail to reveal any decisions of this or other courts concluding the matter. Our own research likewise has failed to produce a directly analogous precedent. So far as we have been able to determine we are here dealing with a situation of initial impression. We must, therefore, reason from certain well-established principles in order to arrive at our conclusion.

We start with the proposition that administration proceedings are proceedings in rem. The estate administered upon is considered the “rem”. By “administration proceeding” as here employed, we have reference to all types of proceedings for administering the estates of decedents in a probate court whether pursuant to a will or in accord with the laws governing intestacy. Pitts v. Pitts, 120 Fla. 363, 162 So. 708; Street v. Crosthwait, 134 Fla. 158, 183 So. 820. In accord with this proposition it may be noted from Section 733.16, Florida Statutes, F.S.A., that the claim of a creditor is required to be “filed in the office of the county judge”. Our earlier statutes required that the claim be “presented” to the personal representative. State Bank of Orlando & Trust Co. v. Macy, 101 Fla. 140, 133 So. 876, 78 A.L.R. 1119.

The personal representative, whether he be an administrator or executor, has no power to waive the requirements of the statute with reference to the filing of the claim. In re Woods’ Estate, 133 Fla. 730, 183 So. 10, 117 A.L.R. 1202; American Surety Co. of New York v. Murphy, 151 Fla. 151, 9 So.2d 355. See also,. Probate Claims in Florida by Wilson and McGehee, Fla. Law Rev., Vol. 1, No. 1, p. 1 (pp. 13-14).

We have held it to be a matter of public policy in this state that the estates of decedents shall be speedily and finally determined with dispatch. It is pursuant to this policy that statutes of nonclaim such as the one under consideration have been enacted by the Legislature. While it is not the purpose of the Probate Act to restrict unreasonably the rights of creditors, it is nonetheless the objective of the Act to expedite and facilitate the settlement of estates in the interest of the public welfare and for the benefit of those interested in decedents’ estates. In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833.

Having in mind, therefore, these general! rules governing the nature of administration proceedings and the aspects of public-policy involved in the interpretation of our Probate Act, we move on to apply the principles to the matter before us.

We must consider generally the validity of the appointment of the administrator and the effect of the discovery of the will upon the acts and doings of the administrator prior thereto. Although originally the rule may have been otherwise, it is now generally conceded that the discovery of a will and the issuance of letters testamentary after the appointment of an administrator for an estate does not render the grant of letters of administration void. It is only voidable. This leads, to the result that all acts and things done by the administrator pursuant to the letters-of administration are not open to collateral attack and are binding on the parties interested in the estate, including the subsequently named executor or administrator cum testamento annexo. 21 Am. Jur., Executors and Administrators, Section 165. In accord with this rule, the act of the administrator in publishing notice to creditors is a valid and binding act of such validity and vitality that creditors of the estate are bound to take note of the notice and file their claims in accord with the requirements of the Probate Act. Bearing in mind that the administration proceeding is in rem, the act of the administrator in publishing the notice is not the act of an individual but rather the act of the estate itself. Consequently, when a will is subsequently discovered and an administrator cum testamento annexo appointed, he takes the estate as he finds it, subject to all proceedings theretofore had.

The language of the statute which requires revocation of letters of administration by employing the word “revoke” in and of itself recognizes that there is something to revoke. If the letters of administration were void or meaningless, it would be unnecessary to “revoke” them. In such a situation the estate has already published the notice to creditors and it is totally unnecessary for the subsequently appointed administrator cum testamento annexo or executor to publish another notice. A contrary rule could lead to an interminable situation directly contrary to the established policy of bringing estates to an expeditious closing. This is so for the obvious reason that conceivably there could be a number of successor personal representatives and under a rule different from the one we have announced, each would be required to publish an entirely new notice to creditors with the attendant eight months period for the filing of claims. The period of administration could be extended ad infinitum directly contrary to what we have said is a basic objective of our Probate Act. See Hewson v. Shelley, 2 Ch. 13, Ann.Cas.1917B, p. 1119.

While admittedly we have found no precedents directly on the point, the decision of the Supreme Court of Alabama in Floyd v. Clayton, 67 Ala. 265, is strongly analogous in principle for the reason that it demonstrates a rule correlative to a situation such as the one before us. In the case cited the administrator published notice to creditors. A creditor filed a claim pursuant to the notice. Subsequently a will was discovered and an executor appointed pursuant thereto with revocation of the prior letters of administration. The creditor did not present his claim to the executor but relied on the previous presentation pursuant to notice published by the administrator. The Alabama court held that the grant of administration as in case of intestacy was voidable only and not void upon discovery of a will. It held that the creditor could legally deal with the administrator and that the notice published by the administrator was valid and binding on the estate. It was further held that the statute does not contemplate renewed or repeated presentation of claims as often as there may be changes in administration. Although this case involves the converse of the situation now before us, it clearly supports the conclusion which we here reach. For example, applying the rule of the Alabama case cited, the notice to creditors published by Hoffman, as administrator, was an act valid and binding on the estate. It was an act of the estate that served notice to all creditors to file their claims. The subsequent notice by the administrator cum testamento annexo was totally unnecessary surplusage. Consequently it could not in any measure affect the validity or the effectiveness of the first notice published by the administrator. The administrator cum testamento annexo could not waive the benefit which had accrued to the estate by the publication of the first notice. The administrator cum testamento annexo had no power to extend the statutory period for filing claims merely by publishing an unnecessary second notice. The result of this is that Murphy should have filed his claim within eight months from the initial publication by the administrator. The filing of the claim beyond the initial eight-month period but within eight months after the publication of the surplus and unnecessary second notice was not binding on the estate. The second claim filed by Mur-pliy was consequently filed too late to be enforceable and it should have been stricken on motion of the administrator cum tes-tamento annexo. The objections of the administrator cum testamento annexo should have been sustained.

The judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

TERREL, C. J., HOBSON, J., and LUCKIE, Associate 'Justice, concur.


author: ROWE, Associate Justice.

text:
    H. B. LEWIS and D. M. Lewis, copartners, trading and doing business as M. G. Lewis and Sons Garage, and D. M. Lewis, as executor of the estate of M. G. Lewis, deceased, Appellants, v. The STATE ROAD DEPARTMENT OF FLORIDA et al., The Apalachicola-Northern Railroad, a Florida Corporation, and the St. Joe Paper Company, a Florida Corporation, Appellees.
    Supreme Court of Florida, En Banc.
    April 24, 1957.
    Rehearing June 5, 1957.
    Claude Pepper, Tallahassee, and John M. McCants, Fort Lauderdale, for appellants.
    Bryan W. Henry, Miami, for State Road Department.
    Ford L. Thompson (of Meginniss, Thompson & Morrison), Tallahassee, for Apalachicola-Northern R. R. and St. Joe Paper Co.
   ROWE, Associate Justice.

On November 6, 1953, the plaintiffs filed their bill of complaint in the Circuit Court for Leon County, Florida, against the defendants, alleging that plaintiffs then and since 1928 owned property adjacent to and abutting on U. S. Highway 98 (State Road 30) for a distance of about 300 feet, and -is used for the operation of a business • known as M. G. Lewis and Sons Garage for the sale and servicing of motor vehicles, •sale of gasoline and lubricants, and cafe; that the business is housed in one building ■by reason of which automobiles displayed in the building may be seen by persons •traveling on said Highway; that the principal surfaced street of Port St. Joe, Florida, enters said Highway at a point ■adjacent to the above property; that said street is used by approximately 95%' of ■the workers going to and from a paper mill operated in Gulf County, Florida, by the St. Joe Paper Company; that said paper mill is west of the Highway, — the •entrance to the premises of the paper company being directly across the Highway from plaintiffs’ property; that the paper mill is served by the said Railroad Com■pany, which is wholly owned by the said Paper Company, — said Railroad Company presently having two tracks crossing the Highway and entering the Paper Com-jpany’s premises on the West side of the Highway; that as presently operated the -railroad does not constitute an obstruction to traffic upon said Highway and does not impose upon said Highway an undue “burden, nor does the railroad create any ■substantial traffic hazard, and no necessity •presently exists for the construction of a viaduct by which the Highway and its traffic would be carried over the railroad tracks; that the presently owned railroad yards of the Paper Company are on the west side of the Highway; that, however, •desiring to extend its railroad car switching and storage yard in an easterly direction across the Highway, the Paper Company has caused the Railroad Company to request permission of the State Road Department to lay 12 additional tracks across the Highway, so as to fan out from -the present two spur tracks; that although the defendants have been warned by plaintiffs that their property would be damaged and that public property would be diverted to private use if the 12 tracks should be laid across the Highway and a viaduct should be constructed to carry traffic over the said tracks, the State Road Department has attempted to authorize the defendant Railroad to construct the said 12 additional tracks across said Highway; that the Railroad is presently engaged in extending additional tracks across the Highway; that the proposed additional tracks (together with the existing two tracks, or a total of 14 tracks) will constitute a complete and total obstruction of traffic along the Highway, thereby obliterating and appropriating said Highway to private use so that it will become necessary to erect a viaduct over said tracks at great expense to -the people of the State of Florida and at practically no expense to the Railroad and none whatever to the Paper Company; that the construction of the proposed viaduct is not a public project, but a project made necessary by the Railroad and Paper Company’s collusion in extending its railroad car switching and storage yard; that the proposed viaduct is not being constructed for any road or highway purpose but for a combined railroad and paper mill purpose; that if the Railroad is permitted to continue with its purpose to obstruct the Highway, and if it thereby becomes necessary for a viaduct to be constructed, said viaduct or overpass will set up a concrete wall approximately 18 feet from the plaintiff’s show windows and would be approximately 22 feet high, and would result in irreparable injury to the business of plaintiffs in that A. “Plaintiffs would no longer have the right of ingress and egress to and from the Highway at all points along their 300 foot frontage upon said Highway. B. The plaintiffs’ building and show room would be completely hidden by said overpass, and its value as a business site completely destroyed. C. All traffic on the Highway adjacent to plaintiffs’ property would be carried to a height above the level of the roof of plaintiffs’ building.”; that the proposed action of defendants in laying the additional tracks will not only amount to unauthorized public nuisance, appropriate property held in trust for public purposes to private use and benefit, create an obstruction and hazardous situation necessitating an unlawful expenditure of public funds to promote private ventures, but will amount to a taking of plaintiffs’ property without compensation and without due process of law, contrary to the Constitution and laws of Florida.

The plaintiffs prayed for the issuance of an injunction restraining further proceedings for the laying of additional railroad tracks across said Highway, and from constructing any bridge, trestle, overpass or viaduct over any portion of the Highway at any point where said Highway abuts upon the property of plaintiffs, and from raising or changing the elevation of said Highway at any point where said Highway is adjacent to the said property of plaintiffs. Temporary injunction was issued on November 13, 1955, as prayed for.

The State Road Department answered the bill saying:

1. These defendants deny each and every allegation contained in the said Bill of Complaint and demand strict proof thereof.

2. That any proposed construction by the State Road Department of Florida is necessary and essential to the best interests of the public.

3. That any proposed use of the Highway by the State Road Department of Florida is for Highway purposes.

4. That no property of the plaintiffs is being taken, invaded or injured.

The Railroad and the Paper Company answered the Bill of Complaint, and only so much thereof is set forth as is necessary to show the issues presented, as follows:

3. They admit that the defendant, St. Joe Paper Company, operates a paper mill west of the Highway, and that the entrance to the premises of said paper mill is across the Highway from the Plaintiffs’ property. They admit that the paper mill is served by the defendant, the Apalachicola-Northern Railroad Company.

4. They deny jointly and severally, each and every of the other allegations contained in said complaint.

Motions for Summary Judgment were made by the defendants, and on November 2, 1954, the Circuit Judge made his order on the Motions, saying:

“Ordered, adjudged and decreed that it is undisputed from the record that the proposed project does not take any of the Plaintiffs’ land or premises, and it further appears undisputed from the exhibits on file that the eighteen (18) feet remains between Plaintiffs’ property and the proposed overpass and the present pavement on said eighteen (18) feet will remain undisturbed.
“The Court is of the opinion that from the averments of the Bill of Complaint, the construction of the project will materially damage only the consequential rights of the Plaintiff to ingress, egress, light, air, and view, but under circumstances justifying the payment of appropriate compensation to plaintiff; thus the court is of the opinion that the bill has equity and the various motions for a summary judgment should be denied.”

On the petition of the defendants in said cause for writ of certiorari, the Supreme Court considered the above order of the Circuit Court, 79 So.2d 699, 700, and on January 28, 1955, made the following ruling:

“The history of this litigation and the pertinent facts are set forth in the dissenting opinion of Chief Justice Mathews in this cause. We are of the view that the sole question presented in the petition for certiorari is whether or not the lower court committed error when it denied the motion for summary final decree. Inasmuch as there appears to be a material issue of fact created by the complaint and the answer of the State Road Department, it would be improper to quash the order of the chancellor at this point in the litigation. Certiorari, which is directed solely to the denial of a motion for summary final decree, is denied.” ■

A re-hearing of the Certiorari proceeding was had and denied by the same vote of the Justices, and therein Mr. Justice Hob-son wrote:

“Because I do not consider this case to be before us on the merits I vote to deny the Petition for Re-hearing. The only question presented is: Did the Circuit Judge err in denying the motion of Petitioners for the entry of a ■summary final decree? It appears to me that if the matter were here upon the merits our pronouncements in the -case of Bowden v. [City of] Jacksonville, 52 Fla. 216, 42 So. 394, as suggested in the opinion prepared by Mr. Chief Justice Mathews, would be controlling.”

Mr. Chief Justice Mathews wrote an opinion in the certiorari proceeding, and another on the motion for re-hearing. All three of these opinions now appear in the the case of State Road Dept. of Florida, etc. v. Lewis, Fla., 79 So.2d 699.

On Aug. 29 (should be 19), 1955, plaintiffs asked for permission to amend the complaint by adding to paragraph 21 the following:

“The desirability of constructing the proposed overpass is the direct and proximate result of the failure of the State Road Department to comply with its clear, mandatory duty to protect and conserve S. R. 30 (U. S. 98) and of the carelessness and stupidity of the Defendants St. Joe Paper Company and the Apalachicola-Northern Railroad in laying the St. Joe Paper Company’s wood yard and switching tracks perpendicular to S. R. 30 (U. S. 98) and in otherwise improvidently, carelessly and negligently constructing the aforesaid tracks and wood yard; that the defendants are guilty of malice, negligence and unskilfulness and of gross abuse of discretion in the proposed use and improvement of the aforesaid S. R. 30 (U. S. 98), to-wit, the Apalachicola Railroad, falsely acting under color of authority from the State Road Department and in collusion with the aforesaid State Road Department and St. Joe Paper Company, has negligently and unskilfully used the aforesaid public highway and has wilfully appropriated same by laying five (5) additional tracks across S. R. 30 to convey pulp-wood to the premises of the St. Joe Paper Company’s mill at Port St. Joe, Florida, when, in truth and in fact, the aforesaid five tracks are wholly unauthorized and constitute both a public and private nuisance, the acquiescence of the State Road Department in the laying of these tracks constitutes a gross abuse of discretion on the part of the said State Road Department, and only (1) track is necessary fully and adequately to meet the requirements of the St. Joe Paper Company’s mill at Port St. Joe, Florida; The construction of the proposed overpass by the State Road Department is a gross abuse of discretion on the part of the State Road Department”

The motion to amend was granted in these words:

“That the plaintiffs’ Motion to Amend filed August 18, 1955, be and the same is hereby granted and the plaintiffs in the proof of the allegations of carelessness, negligence, malice and unskilfulness or of gross abuse of discretion shall be limited in their testimony as to the proof of the factual matter alleged in said Motion to amend.”

It was understood that the previous answers applied to the amendment.

On August 19, 1955, the Circuit Judge appointed W. K. Whitfield Special Master to take and reduce to writing the testimony and proofs offered, and present same to the court with his conclusions of law and facts therein involved, together with recommendations for appropriate decree.

The Special Master made his report and findings, from which we set forth the following :

“Neither the two existing tracks nor the proposed additional tracks crossing the Highway touched or abutted in any way plaintiffs’ property.

“The State Road Department has decided to construct an overpass on State Road No. 30 (U. S. 98) over the railroad tracks near plaintiffs’ property. It is contended by plaintiffs that if such an overpass was constructed it would cause plaintiffs damage by diverting traffic away from plaintiffs’ place of business and would deprive plaintiffs of light, air and view, and would greatly depreciate the value of plaintiffs’ property and the business operated thereon.

“The pleadings in this case and the testimony offered by plaintiffs conclusively show that neither the additional railroad tracks proposed to be installed by the Apalachicola-Northern Railroad nor the proposed overpass or viaduct would take, or abut upon, any of the land of plaintiffs. The overpass or viaduct would be constructed at least eighteen (18) feet from plaintiffs’ property and the plans for the overpass call for an eighteen (18) foot street leading to plaintiffs’ property. The testimony is that the proposed improvements would not take away from plaintiffs the right of ingress and egress to and from their property; however, the testimony does show that the ingress and egress would not be as convenient as at present.

“Plaintiffs contend (1) that the granting of a permit to lay additional tracks across State Road No. 30 is unauthorized and unlawful and constitutes an abuse of discretion on the part of the State Road Department of Florida, and diverts the use of a public highway to a private use; (2) that the construction of the proposed overpass is primarily for the benefit and accommodation of St. Joe Paper Company and would only incidentally benefit the traveling public; (3) that the construction of the proposed overpass would amount to an unlawful expansion of the public highway for the use and benefit of one abutting owner, and by permitting such use of the highway the State Road Department is guilty of malice as a matter of law against the other abutting property owner. Lastly it is contended that the construction of the overpass involves unlawful expenditure of public funds.”

“The relief sought by the plaintiffs was to permanently enjoin the defendants from proceeding with the installation of additional railroad tracks and the construction of the overpass until it was determined (1) that plaintiffs were entitled to damages, (2) that the amount of damages be assessed, and (3) to force the defendants to pay to plaintiffs the consequential damages from the construction of the overpass causing a change of grade in the highway.”

“I find from the evidence that the State Road Department proposes to build the overpass for the safety and convenience of the traveling public. In building the overpass the plaintiffs will suffer damages from that consequence by reason of the fact that their light, air and view will be at least partially obstructed and there will be some diversion of vehicular traffic, particularly thru traffic, The St. Joe Paper Company and the Apalachicola 'Northern Railroad will receive some indirect benefits in that the overpass will permit the free passage of railroad cars underneath without hindrance from vehicular traffic. It will also permit the switching of railroad cars under the overpass without fear or concern for vehicular traffic passing overhead, which will eliminate the installation of expensive danger and warning signals.”

“Law of the Case”

“The primary question to he determined is:

“Have the plaintiffs alleged and proved facts and circumstances sufficient to bring them within the exception to the established law that an abutting owner has no right of action for consequential damages occasioned by an authorized change of grade of a street or highway?”

“The Supreme Court of Florida has said on many occasions that a governmental authority was not liable for consequential damages to an abutting land owner caused by an authorized altering of the grade of a street. See Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 394; Dorman v. City of Jacksonville, 13 Fla. 538; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457 [14 L.R.A. 370]; Gold v. City of Tampa [100 Fla. 1134], 130 So. 914; Natural Gas & Appliance Co. v. Marion County, Fla., 58 So.2d 701; and Duval Engineering & Contracting Co. v. Sales, Fla., 77 So.2d 431.

“The State Road Department has wide discretionary powers with reference to maintaining state roads and projects and to make them safe for public use. See Section 341.24, Florida Statutes Annotated. Furthermore, Chapter 29965, Laws of 1955, F.S.A. §§ 334.01 et seq., 335.01 et seq.; 336.01 et seq., 337.01 et seq., 338.01 et seq., 339.01 et seq., declares the public policy of the State of Florida with reference to the public road system and makes the State Road Board the custodian of the state highway system with power to plan, devel-ope, operate, maintain and protect the highway facilities of the State for present, as well as for future use, subject only to the limitations of the Constitution and the legislative mandate hereinafter imposed, thereby giving to the State Road Department all lawful power and authority to plan, maintain and control the State Highway System.

“In this case, the State Road Department has determined that it would be to the best interest of the public in general to construct the overpass or driveway complained of by the plaintiffs.” Citing and quoting from the case of State of Florida v. Florida State Improvement Commission, Fla., 75 So.2d 1, 3. A portion of the quotation is as follows:

“The authority of the administrative agencies to whom is entrusted these governmental functions is limited only by the lawful exercise of their discretion. Within their respective areas of authority these public agencies exercise their discretion to devise plans and select sites to best serve the public need. When the plans adopted by such agencies do not exceed their lawful authority they should be upheld because the Court will not substitute its judgment for that of administrative agencies.”

“There is no testimony tending to show that the action taken by the State Road Department is arbitrary or capricious. There is no showing of malice, negligence or abuse of discretion. In fact, the testimony shows that the State Road Department planned to build the overpass prior to the time that the Apalachicola-Northern Railroad was permitted to install additional tracks on State Road No. 30.”

“I am of the opinion, therefore, that the construction of the overpass and/or the authorized change in grade of the roadway near plaintiffs’ property has been authorized by the proper administrative board having control of the public highways of this state.”

“I am further of the opinion from the testimony that the necessary change in elevation caused by the construction of the overpass will damage the consequential rights of the plaintiffs to light, air and view, and will divert considerable traffic from passing plaintiffs’ property on the same level as at the present time. Since the construction of the overpass has been legally authorized it constitutes a lawful use or improvement of the street or highway and, under the law as announced by the Supreme Court in the Bowden case and similar cases, the change of grade of the street is not a taking or an appropriation of private property within the constitutional guaranty against such taking or appropriation without compensation, even though the rights of light, air and view, and the diversion of traffic are destroyed. This is under the doctrine of damnum abs-que injuria. The court speaks of such damages as ‘consequential damages’ meaning that they are simply the consequences of a legal act and therefore not basis for recovery in the courts, nor a lawful claim for compensation.”

“In answering the questions propounded by plaintiffs in their brief, it is my opinion that the construction of the overpass does not proceed from the laying of additional tracks as maintained by plaintiffs. It proceeds from a matter of public safety and welfare.”

“Plaintiffs contend that the laying of additional tracks is unauthorized and unlawful, and the construction of the proposed overpass is not a mere consequence from the lawful use and improvement of the street as a public highway. This contention has no merit and is not supported "by the testimony in the record. * * * ”

“The Special Master found that there was no merit in the contention of plaintiffs that the construction of the proposed overpass is primarily for the benefit of St. Joe Paper Company and only incidentally for the benefit of the traveling public; and also, that there was no merit to the contention of plaintiffs that the construction •of the proposed overpass proceeds from the negligence of St. Joe Paper Company in placing its wood yard at right angles to the Highway instead of parallel thereto; and also, that there was no merit to the contention of the plaintiffs that the construction of the proposed overpass proceeds from the unlawful appropriation of a public highway by one abutting owner thereon, condoned by and participated in by the State Road Department, thus constituting malice as a matter of law; and that the testimony does not support these contentions.

“In conclusion it is my opinion that the testimony does not support the allegations of the amended complaint that the defendants are guilty of malice, negligence, carelessness and unskilfulness or of gross abuse of discretion; and therefore, there would be no unlawful expenditure of public funds. * * * ”

In his Final Decree the Circuit Judge overruled all exceptions to the Report and Recommendations of the Special Master, and confirmed the same, and stated in said Final Decree:

“3. That the proposed construction by the defendants of the overpass, bridge, trestle, or viaduct and change in elevation of grade in State Road No. 30, herein sought to be permanently enjoined, are found by the Court to have been duly authorized by the proper administrative agencies of the State of Florida acting within their lawful authority and discretion to construct viaducts and to change the grade of highways and street, and that such authorization is found not to be arbitrary or capricious, but to have been obtained without malice, negligence or abuse of discretion; that the construction of said overpass or viaduct and change in grade is found to constitute a lawful use or improvement of the street or highway involved and that any damages sustained by plaintiffs as a result thereof are found to be incidental to a lawful use by defendants of the street or highway and consequently are found not to be compensable.

“4. That the proposed construction herein sought to be permanently enjoined is found not to deprive plaintiffs of their right of access to the existing street or highway, and that any diversion of traffic from the property of the plaintiffs, and any impairment of the plaintiffs’ right to light, air, or view, resulting from such construction is found to he an incidental result from a lawful use or improvement by defendants of the street or highway in question; that defendants’ proposed construction of an overpass, bridge, trestle, or viaduct, and proposed change in grade of the street or highway are found not to constitute a taking,' or appropriation of plaintiffs’ property, nor an unlawful entry, invasion or trespass thereon; and that the plaintiffs are therefore found not entitled to any compensation as prayed for in their bill of complaint as amended.

“5. That the defendants are found to have been guilty of no malice, negligence, carelessness, unskilfulness or gross abuse of discretion; and that the action here sought to be permanently enjoined is found to involve no unlawful expenditure of public funds.

“6. That the facts proved herein show no unlawful diversion of the street or highway involved from proper street or highway purposes.

“7. That the temporary restraining order heretofore entered herein on the 13th day of November, 1953, be, and the same is hereby vacated, and set aside, and the injunction therein granted is hereby dissolved.

“8. That the equities of this case are found to be with the defendants and against the plaintiffs, and that plaintiffs’ bill of complaint herein, as amended, be and the same is hereby dismissed.”

The Final Decree was signed March 7, 1956, and Recorded in Chancery Order Book 59, page 91. An Appeal was taken by the plaintiffs from said decree. Several assignments of errors were made, but inasmuch as the contentions of plaintiffs are set forth in the report of the Special Master, it is not deemed necessary to set forth here more than the first assignment, which is as follows:

“(1) The court erred in entering its final decree herein bearing date the 7th day of March, 1956 and recorded in the records of the above styled court in Chancery Book 59, page 91.”

There is substantial evidence in the record to support the findings of the Special Master, which have been accepted and confirmed by the Circuit Judge, and also, to support the Final Decree.

The Special Master having found that the State Road Department acted with lawful authority, and that the testimony does not show that the defendants are guilty of malice, negligence, carelessness and unskilfulness or gross abuse of discretion, and the Circuit Judge having approved the report of the Special Master, the quotation from State Road Department v. Lewis, 79 So.2d at page 703, is now approved and is decisive of this case:

“‘No property of respondents is entered or taken. As shown by this record, the overpass is to be constructed for the safety of the travelling public. In the case of Bowden v. City of Jacksonville, supra, this court said: ‘As incidents to the ownership of a lot bordering on a public street, there are, in addition to the right of passage over the street in common with the public, the private property right of egress and ingress from and to the lot by way of the street and the private property right of. light and air which the street affords. The owner of such a lot takes and holds it subject to the right of the state, or any duly authorized governmental agency acting for it, to improve the street for public use by altering the grade of the street, by the erection of a viaduct thereon, or otherwise, for street purposes; and, in the absence of legislation or a valid contract the owner has no right of action against a city authorized by law to grade and improve the street for injury to the lot or property thereon, or for the impairment or destruction of the incidental rights of ingress and egress and of light and air which the street affords, because of changes made by the city in the grade of such street by building or rebuilding a viaduct thereon for the improvement of such street, even though such changes in the grade prove inconvenient or expensive to the lot owner in the use of his property, where there is no diversion of the street from its proper street purposes, and where the injury to the lot or property thereon' or the impairment or destruction of the incidental rights is a mere consequence from the lawful use or improvement of the street as a highway, and where' there is no physical invasion of or trespass upon the lot or property, and no malice, negligence, or unskillfulness in the use or improvement of the street for street purposes to the injury of the lot owner. See Dorman v. City of Jacksonville, 13 Fla. 538; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457 [14 L.R.A. 370].”

See also, the case of Weir v. Palm Beach County and State Road Department of Florida, Fla., 85 So.2d 865; and cases cited above in the Report of the Special Master.

The decree appealed from is affirmed.

TERRELL, C. J., and HOBSON, ROBERTS, DREW and THORNAL, JJ„ concur.

THOMAS, J., not participating.


author: PER CURIAM.

text:
    Lorenzo ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division B.
    May 8, 1957.
    Rehearing Denied June 5, 1957.
    Paul Lake, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., Jos. P. Manners and George R. Georgieff, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Affirmed on authority of James v. State, Fla., 80 So.2d 699. See also Longo v. State, 157 Fla. 668, 26 So.2d 818.

TERRELL, C. J., HOBSON and THORNAL, JJ., and LUCKIE, Associate Justice, concur.


text:
    Hesper CAMPENNI et al., Appellants, v. STATE of Florida ex rel. Anthony CAMPENNI, Appellee.
    Supreme Court of Florida, Special Division A.
    May 15, 1957.
    Glasel & Meyer, Hollywood, for appellants.
    William L. Flacks, Hollywood, for appel-lee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rulas of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

TERRELL, C. J., THOMAS and THORNAL, JJ., and PARKS, Associate Justice, concur.


author: THORNAL, Justice.

text:
    DAYTONA BEACH SHORES, Willard G. Schiffermuller, Lew Hensler, Kenneth Zeh, William Rankin, Chauncey Cleveland, Holden L’Ecluse and Helen C. Ward, Appellants, v. STATE of Florida, ex rel. J. G. MEMBERY, Anchorage Beach Colony, Inc., and George Hardwick, Appellees.
    Supreme Court of Florida, Special Division B.
    May 15, 1957.
    John L. Graham of Hull, Landis, Graham & French, De Land, for appellants.
    Raymond, Wilson & Karl and Charles W. Luther, Daytona Beach, for appellees.
   THORNAL, Justice.

Appellants, who were respondents below in a quo warranto proceeding, seek reversal of a final judgment of ouster entered by the trial judge.

The point to be determined is whether the appellants met the procedural requirements of Section 165.04, Florida Statutes, F.S.A., in organizing the town of Daytona Beach Shores.

Pursuant to- notice previously given certain freeholders and registered voters held a meeting to organize the town of Daytona Beach Shores. It is admitted that there were at least 188 qualified freeholders living in the area proposed to be incorporated. The organization meeting was attended by 127 freeholders who were registered voters. Of those attending, 123 freeholders and registered voters participated in the selection of a corporate name and seal and in the designation of the territorial limits. By simple mathematics it will be noted that two-thirds of 188 would amount to 125 and I/3.

The appellees, as relators in the quo warranto proceeding, assaulted the validity of the vote taken in the organization meeting. The trial judge concluded that the procedures followed at the meeting did not meet the requirements of Section 165.-04, Florida Statutes, F.S.A., and entered a judgment of ouster. Reversal of this judgment is now sought.

Appellants contend that Section 165.04, Florida Statutes, F.S.A., merely requires that two-thirds of the freeholders who are registered voters are necessary to constitute a quorum for the meeting but it is not necessary that two-thirds actually participate in the voting.

The appellees on the other hand contend that under the cited statute it is necessary that two-thirds of the freeholders and registered voters living in the area must actually participate in the selection of the name, seal and territorial limits.

Section 165.03, Florida Statutes, F.S.A., provides for the publication of a notice to freeholders who are registered voters living within the proposed corporate limits. The notice shall announce the time and place of the meeting to select officers and organize a municipal government.

That portion of Section 165.04, Florida Statutes, F.S.A., pertinent to our decision, reads as follows: *

“At the time and place designated in the notice aforesaid, the male and female inhabitants who are freeholders and registered voters present, being not less than two-thirds of those whom it is proposed to incorporate, and not less than twenty-five in number, shall select a corporate name and seal for the municipality which they propose to form, and designate by definite metes and bounds the territorial limits thereof. They shall then proceed to choose by a vote of a majority of the said male and female inhabitants who are freeholders and registered voters a mayor and not more than nine and not less than five aldermen, who shall be known as the city council, and in whom it shall vest the government of the city.” (Emphasis added.)

Upon a casual examination of the cited statute, the confusion and misunderstanding which has resulted in this instance is perfectly understandable. We are here called upon to undertake a determination of the intent of the Legislature but are frank to admit that we have not been able to locate an applicable rule of statutory interpretation to guide us to our conclusion. The statute has heretofore been held constitutional. Heyward v. Hall, 144 Fla. 344, 198 So. 114.

We have held also that the preliminary steps required for the organization of a municipal corporation under this statute are mandatory. They are essential to the ultimate validity of the existence of the proposed municipality. Farrington v. Flood, Fla.1949, 40 So.2d 462. In the case last cited it was held that where two-thirds of the freeholders and registered voters residing within the proposed territorial limits failed to attend the public meeting held to organize the municipality, the meeting itself would constitute no basis for the organization of a valid municipal corporation.

In the instant case two-thirds of the freeholders and registered voters attended the meeting but less than two-thirds participated in the selection of a name, seal and territorial limits. The establishment of a municipal corporation is the exercise of a power emanating from the sovereignty of the state itself. When this power is exercised it results in organizing a unit of government endowed with such aspects of sovereignty as the police power, the right of eminent domain and the power to tax. We are therefore of the view that the Legislature evidently intended that this important power be exercised by the expression of no less than two-thirds of the people who would be ultimately affected by the move. The very nature of the power involved suggests the propriety of the requirement that more than the customary majority concur in its exercise.

A careful analysis of the statute suggests that in selecting the name, seal and the territorial limits, the concurrence of two-thirds of the affected people is required. These three aspects of municipal government are relatively permanent. By contrast, in the very next sentence it is noted that the city officials are chosen by a majority vote of the affected people. It appears to have been the legislative intent that at least two-thirds of the affected freeholders and registered voters not only be present at the meeting but actually concur in the selection of the name, seal and territorial limits. This means that two-thirds must agree on these three items. Even a majority of the two-thirds would not be sufficient.

The appellants rely heavily on the decision of this Court in Hall v. State ex rel. Ervin, Fla.1950, 46 So.2d 878. The reported opinion did not delineate the alleged defects in the organization asserted in that case. Appellants, however, have exercised the diligence of examining the original record and have brought to our attention that the pleadings in the case reveal that while two-thirds of the affected freeholders participated in the organization meeting, the records of the proceeding show that less than two-thirds actually voted on the three critical propositions required by the statute. We too have examined the original record in Hall v. State ex rel. Ervin, supra. We find the factual situation there to be as appellants represent. However, we are bound to point out that nowhere in the record of the Hall case did any of the parties tender the specific question raised by the instant appeal. The contention that was submitted to the Court in the Hall case was that the record failed to show that two-thirds of the qualified freeholders met collectively and at one single moment took a vote on the preliminary question of whether to incorporate or not to incorporate. Apparently in that case the meeting was held pursuant to notice and, between certain hours on the date and place announced, the qualified freeholders attended the meeting, participated and actually voted by ballot.

As heretofore pointed out, the critical problem raised by the instant appeal was not presented to the Court in Hall v. State ex rel. Ervin, supra, and therefore cannot now be considered as having been determined by that decision.

We therefore hold that the trial judge in the instant case ruled correctly in entering the judgment of otister. For the guidance of those interested in organizing municipal corporations under the cited statute in the future, it is the holding of this opinion that on the matters of the selection of a name and seal and the designation of the territorial limits, two-thirds of the freeholders who are registered voters must actually agree. This means not only participation in the meeting but that the three critical items must be approved by two-thirds of the affected freeholders and registered voters. A constructive contribution to municipal government would be a legislative re-examination of Chapter 165, Florida Statutes, F.S.A., in the interest of clarifying its many confusing provisions.

The judgment appealed from is affirmed.

TERRELL, C. J., HOBSON, J., and LUCKIE, Associate Justice, concur.


text:
    SOUTH PENINSULA ZONING COMMISSION et al., Petitioners, v. Richard F. STONER et al., Respondents.
    Supreme Court of Florida, Special Division B.
    May 15, 1957.
    Brass & Strong, Daytona Beach, for So. Peninsula Zoning Commission.
    Charles W. Luther, Daytona Beach, for Volusia County.
    Raymond, Wilson & Karl, Daytona Beach, for freeholder plaintiffs, petitioners.
    John E. Graham of Hull, Landis, Graham & French, De Land, for respondents.
   PER CURIAM.

In view of our opinion in Daytona Beach Shores v. State, 95 So.2d 257, the questions raised by the petition for certi-orari herein have now become moot. For this reason the petition is denied.

TERRELL, C. J., HOBSON and THORNAL, JJ., and LUCKIE, Associate Justice, concur.


author: DREW, Justice.

text:
    Archie KELLY, Appellant, v. Ed. BLACKBURN, Jr., as Sheriff of Hillsborough County, Florida, and Clarence E. Prevatt, as Constable of District One, Hillsborough County, Florida, Appellees.
    Supreme Court of Florida, Special Division B.
    May 15, 1957.
    Rehearing Denied June 20, 1957.

      Tom J. Johnson, Jr., Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellees.
   DREW, Justice.

This is an appeal from an order of the trial court discharging a writ of habeas corpus and remanding the petitioner in the lower court (the appellant here) to the custody of the sheriff.

The question involved in this case is the constitutionality of the so-called Blue Laws or Sunday Closing Laws. Chapter 855 Florida Statutes 1955, F.S.A. The question raised and which we must determine is whether Sections 855.01 and 855.02, Florida Statutes 1955, F.S.A. are constitutional.

Appellant was arrested upon a warrant charging that he violated both sections of the aforementioned statutes by conducting a used car business on Sunday, October 14, 1956 and on said day selling a 1950 Ford automobile.

In the case of Henderson v. Antonacci, Fla.1952, 62 So.2d 5, we had occasion to deal with the then Sections 855.01 and 855.02 as amended in 1951 which exempted from their operation certain types of businesses. In the disposition of the appeal in that case we concluded that the chancellor below was correct in holding Sections 855.01 and 855.02, Florida Statutes, F.S.A. as so amended unconstitutional for the reasons which we pointed out in that opinion. We further concluded, however, that the question of the constitutionality of said sections as they existed prior to the amendments thereof by the 1951 laws was not a proper subject matter for consideration by the lower court and reversed the final decree with directions that the chancellor modify said decree in such manner as to restrain the appellants in that case only from enforcing the provisions of said Sections 855.01 and 855.02 as so amended.

Following this decision the legislature amended Sections 855.01 and 855.02 by Chapter 29615, Sections 30 and 31, Laws of Florida 1955, which appear as the current law in Sections 855.01 and 855.02 Florida Statutes 1955, F.S.A.:

“855.01 Following trade, etc., on Sunday. — Whoever follows any pursuit, business or trade on Sunday, either by manual labor or with animal or mechanical power, unless the same be work of necessity, shall be punished by a fine not exceeding fifty dollars; provided, however, that nothing contained in the laws of Florida shall be so construed as to prohibit the preparation or printing between the hours of midnight Saturday and six in the morning, Sunday, of any newspaper intended to be circulated and sold on Sunday, or to prohibit the circulation and sale on Sunday of same, or to prohibit the circulation and sale on Sunday of any newspaper theretofore printed; provided nothing contained in this section shall apply to theaters in which moving pictures are shown.
“855.02 Selling goods on Sunday.— Whoever keeps open store or disposes of any wares, merchandise, goods or chattels on Sunday, or sells or barters the same, shall be punished by a fine not exceeding fifty dollars. In cases of emergency or necessity, however, merchants, shopkeepers and others may dispose of the comforts and necessaries of life to customers without keeping open doors.”

The question now squarely presented is the constitutionality of these statutes as now existing.

The only difference in the statute as it existed at the time of the opinion in Henderson v. Antonacci, supra, and as it exists today is that fewer businesses are excluded from its operation under the present statutes. Basically the law is the same and the constitutional infirmities pointed out in Henderson v. Antonacci, supra, are present in the existing statute.

We, therefore, hold without a further elaboration upon the views expressed in the aforementioned case that the following language in that case is decisive of the question before us:

“It may be said that the closing of all business houses on Sunday, except in cases of emergency, bears a rational and reasonable relationship to the public health, safety, morals or general welfare because thereby protection is afforded all citizens from the evils attendant upon uninterrupted labor. Nevertheless, it does not follow that laws containing the exemption of many businesses and vocations, such as the legislative enactments now under consideration, can be said to bear such relationship to the public health, safety, morals or general welfare as to declare them to be valid general laws (although they may be general laws in the sense that they are effective in each and every county of the State) simply because they operate equally upon all within a certain class or classes. It Is necessary that there be a valid and substantial reason to make such laws operate only upon certain classes rather than generally upon all. State ex rel. Pennington v. Quigg, 94 Fla. 1056, 114 So. 859; Mayo v. Polk Co., 124 Fla. 534, 169 So. 41, appeal dismissed Polk Co. v. Mayo, 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed. 376; Crandon v. Hazlett, 157 Fla. 574, 26 So.2d 638; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L.R.A. 664; City of Denver v. Bach, 26 Colo. 530, 58 P. 1089, 46 L.R.A. 848.”

Holding as we do that said Sections 855.01 and 855.02 are unconstitutional the order appealed from must be and is reversed with directions to discharge the petitioner.

TERRELL, C. J., and HOBSON and THORNAL, JJ., concur.


author: THOMAS, Justice.

text:
    STEINFELDT-THOMPSON COMPANY and Hardware Mutual Casualty Company, Petitioners, v. Jack TROTTER, Virgil Sanders Farm, New Amsterdam Casualty Company, Devon J. Law, Utica Mutual Insurance Co., and The Florida Industrial Commission, Respondents.
    Supreme Court of Florida, Division A.
    May 15, 1957.

      Dixon, Dejarnette, Bradford & Williams, Miami, for petitioners.
    Kaplan & Sar, Miami, for respondent Jack Trotter.
    David Batcheller, of Smathers, Thompson & Dyer, Miami, for respondent Virgil Sanders Farm, through its carrier, New Amsterdam Cas. Co.
    Richard Krieger Fink, Miami Beach, for respondent Devon J. Law.
    Rodney Durrance, Tallahassee, for respondent Florida Industrial Commission.
   THOMAS, Justice.

A very odd situation is reflected in this record.

Virgil Sanders Farm was engaged in growing tomatoes in the produce belt of Dade County. Usually tomatoes are harvested and shipped before becoming fully ripe but some of them for one reason or another reach the stage of ripeness that prevents their being acceptable in regular markets. In order to prevent or reduce the loss from such ripened fruit, Virgil Sanders Farm engaged Steinfeldt-Thomp-son' Company, by loose informal agreement,to buy the ripened fruit. According to the petitioners’ version of the facts developed by the testimony, it was part of the arrangement that Virgil Sanders Farm, if it wished, could interrupt the gathering o-f the fruit by Steinfeldt-Thompson Company and harvest the ripe tomatoes on its own account. Under what circumstances the petitioners claim this could have been done is not entirely clear.

Steinfeldt-Thompson Company contends that it was not obligated to take any particular quantity of tomatoes and if this company did not gather all tomatoes that ripened, Virgil Sanders Farm had the privilege of dealing with others for purchase of the residue.

Steinfeldt-Thompson Company was to pick the tomatoes only for its own processing or canning plant and for no one else and evidently this company had in its service “insufficient crews” to gather the tomatoes grown by Virgil Sanders Farm so it engaged Devon J. Law to pick the tomatoes and deliver them to the plant. Law employed men of his choice, discharged them as he pleased, fixed their hours of work, furnished baskets and buckets for use of the pickers and trucks for transportation of the fruit from field to plant. He paid all the expenses of his operation and received from Steinfeldt-Thompson Company a certain sum for each boxful delivered to that concern. So his operation was apparently completely free of any supervision by Steinfeldt-Thompson Company, and it is because of this freedom of operation that petitioners insist that Law was an independent contractor only.

Jack Trotter was a member of Devon J. Law’s crew. He was paid daily for the amount of tomatoes he gathered and when he helped load the trucks he was paid a separate wage commensurate with the work performed.

The claimant, on 1 March 1953, while engaged as a member of the crew of Devon J. Law was injured, and it seems that at that time no one took the position that there was any relationship between Law and Steinfeldt-Thompson Company that would have made the company or its carrier responsible for compensation to the workman.

In any event, soon after the injury was suffered by the claimant, his employer, Law, reported the incident to Virgil Sanders Farm and Virgil Sanders Farm passed the information to its carrier, New Amsterdam Casualty Company. That carrier, apparently without taking pains to have the matter investigated, proceeded to pay compensation to the injured man and to furnish him medical care. Of course, the money was paid and the treatment provided solely on behalf of Virgil Sanders Farm.

Despite the factual situation we have described, Steinfeldt-Thompson Company in September 1955, more than two years after the injury, received notice that a claim for compensation benefits was being asserted against it by Jack Trotter, and the Deputy Commissioner eventually approved the claim. The company and its insurance carrier, Hardware Mutual Casualty Company, obtained a review and the full commission affirmed the deputy’s order. Upon a petition for certiorari we now pass upon the propriety of the proceeding.

The pertinent statute is Sec. 440.19(1), Florida Statutes 1951 and F.S.A. In the first part of this section it is provided that “right to compensation for disability * * shall be barred unless a claim therefor is filed within two years after the time of injury * * Since, say the petitioners, the claimant was injured 1 March 1953 and no claim was asserted against Steinfeldt-Thompson Company until 26 September 1955, it is clear that under that law the claim came too late. But, counters the claimant, the prohibition of this part of the section cannot avail the petitioners because under the exception expressed in it such a claim is not barred if “payment of compensation ha9 been made without an award” and the claim is filed within “two years after the date of the last payment.”

There immediately comes to us the question whether or not the payment by Virgil Sanders Farm, or its carrier, could assuming they were under no obligation to pay compensation, operate to extend the two-year period for filing claims on the theory that the “last payment” of compensation even by one paying the compensation through error would be the time from which a new period of two years would be computed.

We are not obliged to decide whether or not careless or erroneous payment by a stranger could logically be held to affect the responsibility or the defenses of one who might later appear to be liable because this question could in this case be based only upon the premise that Steinfeldt-Thompson Company was totally ignorant of the injury and the payments made by another. There was sufficient evidence to support a contrary viewpoint.

The petitioners, whose version of the facts we have so far related, strongly disclaim any responsibility of Steinfeldt-Thompson Company, or Hardware Mutual Casualty Company, for compensation or medical treatment of the worker, Trotter. The impression we get from the briefs of petitioners is that Steinfeldt-Thompson Company and Virgil Sanders Farm were wholly dissociated from Devon J. Law who, as an utterly independent contractor, had employed Trotter and was, therefore, solely accountable to the employee for the injuries.

The premise assumed by the petitioners does not coincide with the findings of the deputy commissioner which the full commission affirmed. The deputy found that the employee was injured by accident arising out of and in the course of his employment with Steinfeldt-Thompson Company, as well as Devon J. Law, although compensation had been paid and medical benefits had been furnished by the insurance carrier for Virgil Sanders Farm, New Amsterdam Casualty Company, from the day of the injury, 1 March 1953, to 24 February 1955 when maximum recovery was supposed to have been reached. The workman filed a claim for additional compensation and on 13 September 1955 a hearing was held to determine the date of maximum recovery, the degree of residual permanent disability and the right to any other benefits. Then it was for the first time determined that Virgil Sanders Farm was not claimant’s employer.

Contrary to the assertion of the petitioners that there was no particular obligation on the part of Steinfeldt-Thompson Company to harvest all the ripe tomatoes but only to take such as the company needed, the deputy determined that there was a primary duty on the part of this company to pick the ripe tomatoes to prevent spoilage in the field. Fie found also that this company “subcontracted [the] primary obligation * * * to Devon J. Law, who in turn hired Jack Trotter * * Upon this finding of fact he based the conclusion that Steinfeldt-Thompson Company was the common employer while Devon J. Law was a subcontractor so that the provisions of Sec. 440.10(1), Florida Statutes 1951, and F.S.A., should be brought into play in behalf of the injured workman.

In the pertinent part of the statute it is provided that if “a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor .who has secured such payment.”

In fine, the pivotal point is the nature of the undertaking by Steinfeldt-Thompson Company. If that company had no “primary obligation” to pick ripe tomatoes in quantity beyond its needs, there was, according to petitioners’ contention, no responsibility for the injury suffered by the workman. If, on the other hand, there was such a “primary obligation” to pick a quantity of ripe tomatoes beyond the company’s needs, as the deputy found, then the company was answerable to the employee because part of the work had been “sublet” bringing the protection of the law to the employee. There was substantial competent evidence that the latter situation obtained so we approve the findings of the deputy and the full commission on this point.

The claimant contends that two factors support the order which he was eventually awarded. Not only had the vice-president of Steinfeldt-Thompson Company been told of the injury but the company’s subcontractor had, though mistakenly, notified Virgil Sanders Farm putting in motion payments by Virgil Sanders Farm’s insurance carrier. By the combined action of the two, the claimant contends, he was led to believe he was secured benefits under Workmen’s Compensation Law until the period of two years from the date of injury had elapsed then was faced with the defense that the company actually responsible to him should be spared mating payments because of the operation of the statute while the company from whom payments had 'been received would not be required to pay more because it had not been liable in the first place.

The claimant insists that the factual situation clearly calls for application of the doctrine of estoppel and we are inclined to agree with him. There was sufficient evidence to justify the view that Law was Steinfeldt-Thompson Company’s subcontractor and that both had been notified of the injury. The defense of the statute of limitations was one which could be waived and Steinfeldt-Thompson Company could logically be said to have waived it when it suffered the payments to be made and treatment to be afforded by Virgil Sanders Farm’s insurance carrier knowing from the report of the subcontractor that the workman had been injured. Sec. 440.20(4), Florida Statutes 1951, and F.S.A. It could hardly have been expected of the employee to proceed against Steinfeldt-Thompson Company when he was being compensated and treated at the behest of his employer, and his right to benefits had not been contested either by Law or Steinfeldt-Thomp-son Company.

One more question deserves consideration, discussion and decision. If Trotter was an agricultural farm laborer, he was not entitled to the benefits of Workmen’s Compensation Law unless his employer had waived the exemption. The petitioners challenge the finding of the deputy, which was approved by the full commission, that Trotter was not an agricultural farm laborer. Evidently this conclusion sprang from the theory that inasmuch as the workman’s employer was not engaged in farming but only in gathering fruit for a cannery and loading trucks for transportation to the plant, the status of the workman was fixed by the business of his employer and he was not precluded from the benefits of the act. This position seems to have support in Sec. 440.10(1), supra, because of its provision that “[i]n case a contractor sublets any part * * * of his * * * work to a subcontractor * * *, all of the employees of such contractor and subcontractor * * * engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” (Italics supplied.)

’ Obviously, Steinfeldt-Thompson Company was not engaged in an agricultural pursuit, but in the business of processing and canning, so once it was decided that that company had “sublet” to Trotter’s employer, Trotter was properly classified as a workman in the cannery and processing enterprise.

The petition is denied.

TERRELL, C. J., and ROBERTS and THORNAL, JJ., concur.


text:
    PETROLEUM REALTY CORP., a Florida corporation, Appellant, v. F. P. SADOWSKI, Individually, and F. P. Sadowski, a Florida Corporation, Appellees.
    Supreme Court of Florida, Division A.
    May 1, 1957.
   Appeal from Circuit Court, Monroe County; Aquilino Lopez, Jr., Judge.

PER CURIAM.

Affirmed.


text:
    Andrew Jackson PENDARVIS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    May 29, 1957.
    Rehearing Denied June 5, 1957.
   Appeal from Circuit Court, Highlands County; William P. Allen, Judge.

PER CURIAM.

Affirmed.


author: PER CURIAM. PER CURIAM.

text:
    Gerald W. BOUVIER, Appellant, v. Aaron SCHECTER, Appellee.
    Supreme Court of Florida, Division A.
    March 13, 1957.
    On Rehearing May 15, 1957.
    John Carruthers, II, Miami Beach,.- for appellant.
    Harry B. Smith, Miami Beach, for ap-pellee.
   PER CURIAM.

Affirmed, without prejudice to the right' of the appellant to proceed against his co-defendants to recover such sums as were disbursed by him to their use and benefit.

TERRELL, C. J., and THOMAS, ROB-' ERTS and THORNAL, JJ., concur.

On Rehearing Granted

PER CURIAM.

We adhere to our former decision of af-firmance as stated in the original opinion.

It is so ordered.

TERRELL, C. J., and THOMAS, ROBERTS and THORNAL, JJ., • concur.