The opinion
I concur in the opinion prepared by Mr. Justice WHITFIELD on rehearing.
In Horton v. Kyle, 81 Fla. 274 , 88 So. R. 757, the original Act was void ab initio because it was a special or local law and notice of intention to apply for its passage, as mandatorily commanded by the Constitution, had not been given. Therefore, the Act never came into existence for any purpose. It was utterly non-existent. It was held that no administrative assessments could be made "pursuant" to a law that never had any existence, consequently the purported assessments were equally as non-existent as the statute and could not be brought into existence by a subsequent Act which purported to ratify something which in legal contemplation had never been undertaken. This holding led to the inevitable conclusion that the assessments there involved could not be validated by a subsequent Act which purported only to "ratify" previous action upon the supposition that such action was merely irregular, when in law such action was never taken. The specific holding as set forth in the third headnote is: "It is not competent for the Legislature, by subsequent proceedings, to validate an act that never passed in the Legislature in accordance with the requirements of the Constitution."
There is to me a clear distinction between that situation and the one here presented. Here the original Act under which the attempted assessments were made was validly passed and became a law. Amongst other things, it purported to authorize the making of special assessments by a subordinate board. But the method prescribed for making the assessments, when executed by a subordinate board acting under delegated authority, which was the method actually followed in this case, constitutes a denial of due process because no notice or opportunity to be *Page 665
heard in opposition to the assessment is afforded prior to the time the assessment becomes a lien. Besides that, the Act purported to delegate the taxing power to individuals. Hence, the assessments as originally made by the subordinate board are void.
But the legislature itself, acting plenarily and of its own motion, could have made such assessments in the manner prescribed in this Act, without notice and upon its own determination of special benefits. In that action by the Legislature there would have been no denial of due process, nor of equal protection. Any other constitutional right thus invaded, as for instance if the assessment so made in fact exceeded the special benefits and thus amounted to confiscation, could be judicially redressed at the instance of an affected taxpayer. Spencer v. Merchant, 125 U.S. 345 ; 31 L.Ed. 763 ; Wagner v. Leser, 239 U.S. 207 ; 60 L.Ed. 230 . At the time the validating Act here involved was passed, the Legislature could still have made these assessments directly in the manner just mentioned.
The effect of the validating Act in this case, which merely "ratified and confirmed" the void administrative assessments, was that the Legislature thereby made the former administrative acts its own acts, which it had the power to do, and which acts would have been valid originally, and to them there would have been no constitutional objection, if they had been plenarily done by the Legislature itself instead of through the agency of a subordinate body which can act only after notice and an opportunity to the property owner to be heard. In making the attempted assessments here involved, the subordinate board did not act without power, or without "jurisdiction." It was the method prescribed for and followed by the *Page 666
subordinate board in exercising the power that was fatal to the board's acts.
The difference is that in the case of the statute involved in Horton v. Kyle, the statute had never come into existence and the Legislature itself could not bring it into existence, nor any acts done under its purported authority, by a mere "validation". There was nothing for the Legislature to ratify or validate because in legal contemplation the validating act was the genesis of the entire matter. There was nothing preceding it upon which it could operate, and it was beyond the power of the Legislature to bring into existence the attempted original statute or anything done under it. As it was there expressed, the Legislature could not breathe life into a corpse. In this case, the assessments as made were beyond the power of the subordinate body, but not beyond the power of the Legislature. The Legislature therefore may vivify those administrative acts which were done under an existent statute, and which were void by reason only of the modus operandi by which they were performed, by making those acts its own acts by "ratifying and confirming" them, the Legislature at all times having the power to impose such special assessments directly and without reference to notice. The effect of such action is to impose a legislative assessment by adopting as its own act what had been done in an invalid manner by a subordinate board but under an existent statute which purported to authorize the action; such action being invalid only because done through a subordinate agency instead of by the Legislature directly. The invalidating infirmities which were fatal to the assessments when made by a subordinate board do not apply to plenary action by the Legislature. While such legislative action vivifies an act which is void pro tempore, it is not an attempt to put life into something which the *Page 667
Legislature itself could not bring into existence, as was the case in Horton v. Kyle. The fatal objection there was that the original Act under which the subordinate board attempted to act was void and could not be brought into existence even by the Legislature itself. In other words, in Horton v. Kyle, there was no substructure upon which to base a future validating Act. Here the foundation exists, but the superstructure as originally erected by the subordinate board was fatally infirm and fell of its own weight. But the Legislature, acting within its legitimate powers, has restored the superstructure by its own hand. Spencer v. Merchant, 125 U.S. 345 ; 31 L.Ed. 763 ; In re: Van Antwerp, 56 N.Y. 261 ; Sudberry v. Graves, 103 N.W. R. 728; Cranor v. Volusia County, 54 Fla. 525 , 45 So. R. 455; 19 C. J. 736.
I think the former judgment of reversal should stand.
WHITFIELD, J., concurs.