Opinion
October 11, 1957. Rehearing Denied April 2, 1958.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
J.W. Watson, Jr., City Attorney and Robert M. Haverfield, Asst. City Atty., Miami, for appellant.
Anderson Nadeau and Clyde A. Epperson, Miami, for appellees.
The answer to the question of whether the city had the power to repair the streets in the manner described in the opinion by Mr. Justice Thomas and to assess a portion of the cost thereof against the abutting property owners is found in the clear and unequivocal language of Section 56 of the city charter. This legislative act provides "A Local Improvement is an improvement defined by this section and made under the provisions hereof." It further describes the classes of improvements "authorized to be made under the provisions of this Act." There are five classes of improvements so designated but for the purpose of this discussion, we need concern ourselves directly only with class one. The following is the exact language of the city charter describing an authorized improvement under the act for which special assessments for benefits may be made.
Ch. 10847, Special Acts of 1925.
"Class 1. Highway improvements embrace the grading, paving, repaving, macadamizing and re-macadamizing of highways, with necessary drainage, sewer inlets, manhole and catch basins, and, if the Commission so orders, may embrace curbs and gutters." (Emphasis supplied.)
There are many significant words in this quotation. The first word is "improvement". This clearly symbolizes making better something which already exists. Webster, among other things, defines "improvement" as "betterment" and "state of being improved". The language of the act provides not merely for grading, paving and macadamizing a street but also uses the words "re-paving" and "re-macadamizing". This is a clear legislative grant of power to do exactly what was done in the instant case. It is difficult to understand what words the Legislature could have used which would more clearly have vested the power in the city to do the work covered by the resolution and make assessments therefor against the abutting property. The words "macadamizing" and "re-macadamizing" embrace the identical subject as "surfacing" or "re-surfacing". "Macadamizing" a road merely contemplates or embraces a layer or surface over the rock, stone or cement which constitutes the road itself. "Macadamizing" is sometimes referred to as "slag" but may be any substance covering the top or surface of the road put there for smoothness or safety. Webster's Collegiate Dictionary Fifth Edition, describes "macadamize" as "to construct or finish a road by packing a layer of small broken stone on a convex welldrained earth roadbed." "Macadam", according to the foregoing authority, is the "broken stone used in macadamizing." In 54 C.J.S. p. 890, "macadamize" is described as follows: "While it has been observed that the meaning of the word `macadamize' is susceptible of variation, according to the particular relation in which it is employed, it is said to have a fixed and definite meaning. It has been defined as meaning to cover a road or path with small broken stones. which uniting by pressure form a smooth hard surface; to cover, as a road, way, or path, with small stones, so as to form a smooth laid surface; to cover as a roadway surface; to cover a street or road by the process introduced by MacAdam, which consists of the use of small stones, of a uniform size, consolidated and leveled by heavy rollers. The term may refer not only to the kind of material to be used in covering a street or road, but also the manner in which it is to be laid." Moreover the words used in the quoted section of the city charter "pave and re-pave" are of significance to this discussion. In essence these words mean to produce or re-produce smooth surface so that "re-pave" and "re-surface" would be indistinguishable within the intent and clear language of the act. See 76 C.J.S., p. 1175, especially text to note 30 and 54 C.J. 401. McDonald v. Fraleigh, 1923, 86 Fla. 577, 98 So. 830. It may not appeal to some to allow a city to assess for the cost of re-paving or re-surfacing a street but it is unquestionably within the power of the Legislature to authorize such to be done. We reiterate that such power could hardly have been vested in language of clearer import and meaning than that contained in the city charter.
Holding then, as we unanimously do, that the notice discussed in the opinion by Mr. Justice Thomas was in all respects regular and in full compliance with the provision of the city charter relating to special assessments for benefits, we now direct our attention to the requirements placed by the law upon the property owner if he desires to contest the regularity of the proceedings, the power of the city to make the assessments or the amount of the assessments determined to be chargeable against the respective parcels of land.
The resolution authorizing the work and establishing the highway improvement tax district was adopted November 19, 1952. This suit in equity was commenced April 1, 1954.
The resolution was approved by the City Commission after a hearing on December 3, 1952, at which no objections were offered.
Bids were advertised for, contracts awarded and the improvements completed. The Clerk published notice prior to a hearing on June 3, 1953, where no objections were made to the improvements, and they were then accepted.
After a preliminary tax roll had been prepared, the clerk published notice of a hearing on February 3, 1954, for objections to confirmation of the roll. At the hearing, where there were no objections, the City Commission confirmed the assessments, finding: "That the sums and amounts assessed against each of the lots or parcels of ground in said preliminary rolls are less than the amount that each of the said lots or parcels of ground is especially benefited by said improvement and that such amounts are in proportion to the special benefits that the property received * * *."
This is not the first time this section 56 of the city charter has been before this Court; nor is it the first time we have had occasion to deal with the duty and responsibility of the property owner to promptly object to the city commission if he has a grievance with reference to a proposed improvement. In Escott v. City of Miami, 1932, 107 Fla. 273, 144 So. 397, 399, in speaking of this identical section of the city charter, after holding the original notice to have been validly given, we said:
"If the property owner had notice, and in this case we have held that he did have, his only method of questioning any error or irregularity in the proceedings was by filing objections before the city commission, and, if overruled there, by filing his special appeal to the circuit court, in the manner provided by the charter.
"Where a property owner has an opportunity given him, under a statute providing for special assessments for local improvements, to appear and contest the question before the local authorities whose duty it is to pass upon objections, their determination on the subject of benefits is final, and, if he fails to avail himself of the opportunity provided by the statute. he thereby admits the finality of the determination, and is estopped to raise the question in subsequent proceedings such as by suit in equity to enjoin the enforcement of assessments which have become conclusive under the statute." (Emphasis supplied.)
See also Rosche v. City of Hollywood, Fla. 1952, 55 So.2d 909, and Summerland, Inc., v. City of Punta Gorda, 1931, 101 Fla. 543, 134 So. 611.
Section 56 of the charter of the City of Miami provides, in detail, the steps to be taken by the city officials in authorizing public improvements, the cost of which are to be paid in whole or in part by the owners of the land abutting said improvements and especially benefited thereby. The various notices required to be published are for the purpose of advising the property owners affected of the nature and extent of the improvements, the extent of the assessments to be made against the land to be especially benefited thereby and the details of such construction so that the affected property owners may be fully advised as to what is contemplated, the approximate cost of the improvement and the approximate amount to be ultimately assessed against the affected property. These requirements of the charter serve not only to protect the property owner by giving him notice of contemplated improvements so that he may take timely action either before the city commission or in the courts to protect his interest in the matter but it serves also to afford the municipal government the opportunity of financing such improvements and a means of setting in repose questions of the validity of such proceedings and the assessments to be made pursuant thereto. Such proceedings serve much the same purpose as validation proceedings under Chapter 75, F.S.A. Both are necessary to the efficient and orderly financing of civic improvements and are a necessary adjunct of fiscal management. It would be disastrous to the fiscal affairs of the city and detrimental to the general welfare of its citizens if the validity of such assessments was constantly open to question. The orderly administration of the affairs of the city require that the property owner make timely objection and it imposes no undue burden on him to do so. We specifically pointed out in Summerland, Inc., v. City of Punta Gorda, supra, that a property owner who stands by and permits a public improvement to be made to the benefit of his property under authority of a tribunal vested with the power to levy such assessment may be estopped from raising objections thereto by sleeping on his rights and not promptly asserting them even though, had they been timely raised, such objections might have rendered the assessment invalid. The failure of the property owners here to promptly assert whatever rights they had or make any effort to comply with the applicable provisions of the city charter now estops them from questioning the validity or amount of these assessments.
I am authorized to say that Mr. Justice HOBSON, Mr. Justice THORNAL and Mr. Justice O'CONNELL concur in these views.
The judgment appealed from is reversed with directions to dismiss the complaint.
HOBSON, THORNAL and O'CONNELL, JJ., concur.
TERRELL, C.J., and THOMAS and ROBERTS, JJ., dissent.
The appellant by resolution created a Highway Improvement District, published a notice that at a designated time "objections would be heard to the confirmation of such resolution," to quote from the decree, and subsequently improved a certain street described in the resolution and the notice by applying a one-half inch "leveler" course and a one inch surface course. The base of the street and the curbs and gutters were not disturbed. In other words, the city resurfaced the existing street and undertook by the resolution to charge the cost, except for improving the intersections, to the abutting owners.
The judge decided that the notice was insufficient and that the appellant lacked the authority to impose the cost of an improvement of this nature upon the property owners. He appointed a master to ascertain what amounts had been paid by the various owners on the liens that had been filed to secure payment of the assessments, evidently with the view of later ordering the owners reimbursed.
We will detail the reasons for the rulings as we discuss the questions presented in the briefs.
The appellant claims that authority for the procedure was granted by Sec. 56 of the city charter, Chapter 10847, Laws of Florida, Special Acts of 1925, as amended. In that act we find that the city has the power to grade, pave, re-pave, macadamize and re-macadamize streets and specially assess the cost against adjacent property. Improvements and the eventual assessments are initiated by resolution of the city commission defining the termini and routes and the character of the work proposed.
After adoption of the resolution, plans and specifications for the work showing the estimated cost are prepared by the manager and filed with the city clerk. When these are filed, the clerk is required to publish "once in a daily newspaper of general circulation" a notice that at a meeting of the commission "on a certain day and hour" objections of interested persons to the confirmation of the resolution will be heard. The notice must contain, though it may be in brief or general terms, the description and location of the improvement and a statement that plans, specifications and estimates have been filed.
So to generate the power vested by the statute, the resolution must be adopted, and to secure due process to those who must pay the cost, or whose property will be responsible for it, the notice defined in the law must be given.
The notice involved in the instant litigation follows:
"All interested will take notice that at a meeting of the City Commission at 9:30 o'clock A.M. December 3rd, 1952, their objections will be heard to the confirmation of Resolution No. 25006, adopted November 19th, 1952 ordering paving improvements or South Miami Avenue, from S.W. 15th Street Road to 200 more or less south of Alatka Street, designated improvement H-503.
"Plans, specifications and estimate of cost of said improvements are on file in the City Clerk's office.
"November 22, 1952. "F.L. Correll City Clerk."
When we place side by side the relevant section of the charter and the notice we have fully quoted, it is plain to us that the latter contained all elements required by the statute. It was published once in a newspaper of general circulation, The Miami Herald; it carried the date and hour of the meeting of the city commission at which complaints would be entertained; it contained a brief general description of the location where the improvement would be made; and it included the statement that the plans, specifications and estimates had been filed with the clerk.
The appellees seem to have convinced the circuit court that there were five defects rendering the notice insufficient: (1) failure to mention the place, that is, the city, where the objections would be heard, (2) absence of the name of the city commission which would hear them, (3) omission of the name of the city where the streets lay; (4) want of identity of the signatory; (5) insertion of the notice in the classified section of the Herald.
The law only requires that persons interested be notified that protests will be heard at a meeting of the commission, and that the day and hour the commission will meet for the purpose be shown. No mention is made about naming in the notice the place where the commission would hold the particular meeting.
It seems to us that an interpretation that a property owner who wished to object to the proceeding would not be sufficiently informed to be able to locate a meeting of the commission of the city of Miami would be far-fetched. We have the same view about the complaint that the commission that would hear the complaints was not named. In the description of the street appears the familiar title "South Miami Avenue," and the notice appeared in The Miami Herald. We apprehend that few citizens of this state and no owners of property in Miami at all, especially on Miami Avenue between S.W. 15th Street and the vicinity of Alatka Street, would be unaware that these titles pertain to that city. We conclude that anyone purchasing an edition of the Herald and reading the notice would be fully conscious of the nature, place and purpose of the meeting.
Our reaction to the next two so-called imperfections, lack of identity of the city and the signer of the notice, is the same for the same reasons.
As for the position in the paper, among the classified advertisements, we simply say that the publication is the test and that there is no requirement that the notice shall appear in any special section of the newspaper. Actually the notice did appear under the caption "Classified Information" but immediately above it was the title "Legal Notices." We think this position was quite appropriate.
"The purpose of notice under proceedings of this kind is to secure to the owner the opportunity to protect his property from lien of the proposed tax * * * and, in order to be effectual, it should be so full and clear as to disclose to persons of ordinary intelligence in a general way what is proposed and when and where property owners may be heard." (Italics supplied.) Escott v. City of Miami, 107 Fla. 273, 144 So. 397, 399.
We consider that the notice substantially conformed to the statute and that any protestant was advised when he could appear and where he could get full information about the contemplated work inasmuch as the plans, specifications and estimates were shown to be on file in the clerk's office and to relate to a certain numbered resolution dealing with improvement of a stated street.
All members of the court agree to the preceding opinion with reference to the sufficiency of the notice but the opinion which follows is that only of Terrell, C.J., Roberts, J., and the writer. Although we three cannot adopt the view that the property owners could ignore the notice and at this late date successfully attack the action of the city, on the ground that due process had not been afforded them, we believe that the property owners can assail the liens on the ground that the city did not have the power to create them under the circumstances.
The chancellor thought that "resurfacing was necessary to keep the street in repair and facilitate the flow of traffic" and that the "work was for the benefit of the general public, and the abutting owners received no special benefit."
We can understand the potency of an argument that once a street is paved the cost of maintaining it should be borne by the public. Although we cannot agree that keeping a street in good repair is of no special benefit whatever to the property it bounds, we think that the power to maintain and assess the cost to adjacent property must be found in the charter, and in our search we have not discovered that the municipality was granted the power to "re-surface" and assess the costs as in the case of original or new construction. There is no doubt that the city could grade, pave and macadamize and it is clear from the use of the prefix "re" that grading, paving and macadamizing could be done again or anew and liens placed on the property to cover the cost. Presumably a street could so deteriorate that it would be necessary to repeat the work that had made it a graded, paved or macadamized way for the use of vehicles. But we agree with the circuit judge that "surfacing" is not a synonym of the other gerunds used in the act. Definitions of the words "surface" and "surfacing" appear in available dictionaries indicate that they describe a face or covering of a body as distinguished from the other dimensions. To surface, according to one authority, is to make smooth, or put a surface on, such as "surface a road." Thorndike-Barnhart dictionary. The total application consisted of a coating an inch and a half in thickness and when this work is considered with the nature of a street, it seems to us that the circuit judge was not illogical in his holding, based on the testimony of experts, that the layers were to make smoother a street worn by traffic, and that the improvement was in effect maintenance as distinguished from construction or reconstruction.
In conclusion we state that the word "resurfaced" was not the choice of the circuit judge. The relevant part of the resolution was that a certain street be "resurfaced * * * with approximately 1/2" leveling course and 1" surface course of asphaltic concrete * * *." To do the work was within the power of the city; to assess it against abutting property was without such power.
The city had no inherent right to levy special assessments; such power could have been invested in it only by the legislature. City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476. The power to assess for what was obviously repairs was lacking. The assessments were, therefore, void. The payment of assessments by some of the owners would not operate as an estoppel because that doctrine is inapplicable when an assessment is void. Gulf View Apartments, Inc., v. City of Venice, 108 Fla. 41, 145 So. 842. We three are convinced that appellees were entitled to the relief they sought and were granted.
Therefore we dissent.
TERRELL, C.J., and ROBERTS, J., concur.