Opinion
Decision filed February 18, 1930.
An appeal from the Circuit Court for Hillsborough County; L. L. Parks, Judge.
Whitaker, Himes Whitaker and James F. Glen, for Appellant;
Sparkman Knight, for Appellee.
McMullen, Worth Draper, H. D. Wentworth and Claibourne M. Phipps, as amici curiae.
This cause having heretofore been submitted to the Court upon the transcript of the record of the order herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the Court being now advised of its judgment to be given in the premises, it seems to the Court that the constitutional questions raised are determined in the case of Smith Brothers Inc. v. Williams this day filed, and that other equities asserted require a response; it is therefore, considered, ordered and decreed by the Court that the order appealed from is affirmed. Crosland v. Brickell, 86 Fla. 91, 97 So. 286.
Affirmed.
TERRELL, C.J., AND WHITFIELD, ELLIS, STRUM AND BUFORD, J.J., concur.
BROWN, J., dissents.
ON REHEARING. Opinion filed February 3, 1931.
This is a bill of complaint by a property owner seeking the cancellation of certain paving certificates, an injunction against their attempted enforcement, and for other relief. A demurrer thereto was overruled, from which order this appeal was taken.
In this case, Chap. 10145, Acts of 1925, now Secs. 2502-2511, C. G. L. 1927, and Chap. 11208, Acts of 1927, are assailed upon the same grounds considered in Smith Brothers v. Williams, originally reported in 126 So. 367, in which the decree of the lower court holding said statutes invalid, was reversed. At the same time the order appealed from in this cause was affirmed, notwithstanding the reversal in Smith Brothers v. Williams, because other equities were asserted by the bill of complaint herein which require a response. See 126 So. 373. On re-hearing, the decree of the lower court in Smith Brothers v. Williams was affirmed here by an equally divided Court. 131 So. 335.
Thereafter this cause was assigned for re-argument, and upon consideration thereof, the court having inspected the record and the briefs of counsel, and the court being now advised of its judgment to be given in the premises, it seems to the court that aside from the constitutional questions presented in Smith Brothers v. Williams, supra, upon which this court is equally divided, there are other equities asserted in this cause which require a response. It is therefore considered, ordered and decreed that the order appealed from herein be affirmed, and the cause remanded for appropriate proceedings. Crosland v. Brickell, 86 Fla. 91, 97 So. 286.
STRUM, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND BUFORD, J.J., concur.