Opposition Brief — Finlayson v. Town of Monticello

JUN 26 1214

CHATLES ELMORE COOPLE¥

: <

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 194

MARY P. FINLAYSON anv D. A. FINLAYSON, Her

Huspanp,

Appellants,

vs.

TOWN OF MONTICELLO, «a Muwicrpat Corporation

UNDER THE Laws Or THE StaTE oF Forma,

Appellee.

APPEAL FROM THE SUPREME COURT OF THE STATE OF FLORIDA.

APPELLEE’S STATEMENT OPPOSING JURISDIO-

TION AND MOTION TO DISMISS OR AFFIRM.

Cuas. 8. Aus.ey,

LeRoy Cots,

| Lawrence A. Trvert,

Counsel for Appellee.

INDEX.

Sussect Inpvex.

Appellee’ s statement opposing jurisdiction and mo-

tion to dismiss or affirm ...

The appeal i is frivolous.

There is not presented a substantial federal

question

It affirmatively appears that the determination

by the Supreme Court of Florida that the ap-

pellants were estopped from asserting the al-

leged defense to the foreclosure of the im-

provement liens sued upon, is a sufficient non-

federal ground supporting the decision com-

plained of, and precluding the appeal to the

United States Supreme Court on the ~—

Federal grounds

Tasie or Cases Crrep.

Bass, et al., v. The Mayor and Alderman of the City

of Milledgeville, 295 U. S. 721, 55 Sup. Ct. 926, 75

L, Ed. 1675 .....

Campbell v. City of Olney, 262 U. 8. 352, 43 Sup. Ct.

559, 67 L. Ed. 1021.....

Cass Farm Company, Ltd., et al., v. City of Detroit, et

al,, 181 U. 8. 399, 21 Sup. Ct. 624, 45 L. Ed. 395

Farrell v. West Chicago Park Comm’rs. Ili., 21 Sup.

Ct. 609, 181 U. S. 404, 45 L. Ed. 916.

French v. Barber Asphalt Pav. Co., 21 Sup. Ct. 625,

181 U. 8. 324, 45 L. Ed. 879

Hibben v. Smith, 24 Sup. Ct. 88, 191 U. S. 310, 48

L. Ed. 195 .....

Summerland v. City 4 Punta Gorda, 134 So. 611, 101

Fla. 543...

Theresa McSweeney v. - Equitable Trust ‘Company,

315 U. S. 785, 62 Sup. Ct. 805, 86 L. Ed. 1191

—2684

ae INDEX

Utley, et al. v. City of St. Petersburg, Fla., 292 U. 8.

106, 54 Sup. Ct. 593, 78 L. Ed. 1155

Walters, et al., v. v. City of Tampa, et al., 101 So. 227,

88 Fla. 178 .

Chapter 9298, Laws of Florida, Acts of 1923

Sections 170.01 et seq. Florida Statutes, 1941

Judicial Code, Title 28, Section 344

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 194

MARY P. FINLAYSON axp D. A. FINLAYSON, Her

Hvussanp,

on. Appellants,

TOWN OF MONTICELLO, « Muwicreat Corporation

UNDER THE Laws or THE State or F'Loripa,

Appellee.

APPEAL FROM THE SUPREME COURT OF THE STATE OF FLORIDA.

APPELLEE’S STATEMENT OPPOSING JURISDIC-

TION AND MOTION TO DISMISS OR AFFIRM.

Appellee, believing that the matters set forth below will

demonstrate the lack of substance in the question raised

by this appeal, files this its statement in opposition to ap-

pellants’ statement as to jurisdiction. Appellee includes

herein its motion to dismiss the appeal or in the alternative

to affirm the judgment of the Supreme Court of the State

of Florida on the grounds that (1) the appeal ie frivolous;

(b) there is not presented a substantial federal question ;

(c) it affirmatively appears that the determination by the

2

Supreme Court of Florida that the appellants were estopped

from asserting the alleged defense to the foreclosure of the

improvement liens sued upon, is a sufficient nonfederal

ground supporting the decision complained of, and pre-

cluding the appeal to the United States Supreme Court on

the alleged federal grounds.

The matters here relied upon by the appellee are more

particularly stated below:

1.

The Appeal Is Frivolous.

The proceeding was initiated by bill of complaint filed

by the Town of Monticello, a municipal corporation of

Florida in the Circuit Court of Jefferson County, Florida.

The relief sought was the foreclosure of alleged special

assessment improvement liens arising from three paving

programs effected in 1925 and 1926. Authorization for the

paving and special assessments against the abutting prop-

erty owners was bottomed on Chapter 9298, Laws of Flor-

ida, Acts of 1923, Sections 170.01 et seq. Florida Statutes,

1941. When issue was joined, the matter was referred to

a Special Master with directions to take the evidence and

make findings of law and fact. The Special Master found

the liens to be valid and subsisting, the obligations secured

thereby to be in default, and recommended that upon failure

to pay the amount determined to be due, foreclosure be or-

dered. The defendants filed exceptions to the report and

upon a hearing on the same, the Circuit Court dismissed

the bill. The plaintiff appealed from this order to the

Supreme Court of Florida where a reversal was entered

and foreclosure ordered. An appeal to the United States

Supreme Court from this order is now sought.

The crux of the appellants’ contention to support the

appeal is that the record does not disclose any public hear-

3

ing, prior to the adoption of the resolution, by which the

improvement in each instance was initiated, for the deter-

mination of special benefits. Hence the land owner was

denied his privileges secured by the 14th Amendment to

the Constitution of the United States. The constitutionality

of Chapter 9298, supra, is not assailed. This statute does

not require such a hearing. It enumerates the procedure

required to effect the liens and does provide a hearing and

notice thereof prior to the establishment of the liens. That

this hearing was held after due notice, was fully established

and was not questioned before the Supreme Court of the

State and is not questioned on this appeal. In its decision

the Florida Supreme Court expressly determined :

‘‘Our perusal of the record has convinced us of the

propriety of the governing authority in its every action

from the inception of the paving program until its

accomplishment. The requisite resolutions, plans, spe-

cifications, and the like, seem to have been adopted in

the manner and at the time required by law, and evi-

dently all provisions for publication of notices and

assessment rolls were scrupulously obeyed. The gov-

erning authorities, sitting as an equalizing board after

due notice of their meeting, considered and determined

complaints and made necessary adjustment in assess-

ments. Therefore in the main no defect in the pro-

eedure resulting in the liens against the property of

appellee has been discovered.”’

The appellants have not included in the record here the

evidence supporting the fact that each step in the statutory

proceeding to effect the liens was carefully followed. They

do not even challenge the finding by the State Court of this

fact, and thereby admit its truth. They seek to assail the

validity of the initiating resolution standing alone. They

argue that this resolution is in effect a municipal ordinance

and therefore a ‘‘statute’’ within the meaning of sub-sec-

tion (b) of Section 344, Title 28, of the Judicial Code. This

4

resolution can be given no such effect. It is a component

part of a proceeding, comprising many other factors. The

validity of the liens, if reviewed, must be considered in the

light of the entire proceeding by which they were sought to

be established. Hence the appeal sought is without sup-

port and is frivolous.

IL.

There Is Not Presented a Substantial Federal Question.

The only alleged federal question is a failure by the

municipality to have a hearing to determine benefits, and

give notice thereof, prior to the adoption of the initiating

resolution. We reiterate that no such hearing is required

by the statute involved and the validity of the statute is not

challenged. The statute does require a hearing and notice

thereof before final approval of the assessments (Section

7 et seq of Chapter 9298, supra; Section 170.07 et seq.,

Florida Statutes, 1941). That this hearing was had as

provided is not questioned.

That no substantial federal question is presented is sup-

ported by the decision of this Court in a Florida case ex-

actly in point. See:

Utley, et al., v. City of St. Petersburg, Fla., 292 U. 8.

106; 54 8. Ct. 593; 78 L. Ed. 1155.

In point also are the following decisions of this Court:

Bass et al., v. The Mayor and Alderman of the City of

Milledgeville, 295 U. 8. 721; 55 S. Ct. 926; 75 L. Ed.

16765.

Cass Farm Company, Ltd., et al., v. City of Detroit,

et al., 181 U. 8. 399; 21 S. Ct. 624; 45 L. Ed. 395.

French v. Barber Asphalt Pav. Co., 21 8. Ct. 625, 181

U. 8S. 324, 45 L. Ed. 879,

5

Farrell v. West Chicago Park Comm’rs IIL, 21 8. Ct.

609, 181 U. 8. 404, 45 L. Ed. 916.

Hibben v. Smith, 24 8. Ct. 88; 191 U. 8. 310; 48 L. Ed.

195.

As pointed out in the case of

Campbell v. City of Olney, 262 U. 8. 352; 43 8. Ct. 559;

67 L. Ed. 1021.

‘‘Plaintiff in error had opportunity to be heard be-

fore the City Council and was allowed a reasonable

time after the assessment to bring suit to set it aside

or to correct it or any proceeding with reference

thereto. He failed to avail himself of the rights so

given him by State laws. Their validity was not drawn

into question. His claim that he was denied due proc-

ess is not even colorable. (Many cases cited). There

is no federal question in the case.’’

The Supreme Court of Florida has expressly upheld the

constitutionality of the act against asserted violation of the

due process clause of the State Constitution and the United

States Constitution. See:

Summerland v. City of Punta Gorda, 134 So. 611, 101

Fla. 543.

Walters et al., v. City of Tampa, et al., 101 So. 227 ;

88 Fla. 178.

6

Il.

It affirmatively appears that the determination by the

Supreme Court of Florida that the appellants were estopped

from asserting the alleged defense to the foreclosure of the

improvement liens sued upon, is a sufficient nonfederal

ground supporting the decision complained of, and preclud-

ing the appeal to the United States Supreme Court on the

alleged Federal grounds.

The Florida Supreme Court held the appellants to be

estopped from asserting the invalidity of the liens. The

estoppel was bottomed upon these facts established by the

record and not challenged here:

(a) No complaint by owner appellant was made at

the hearing;

(b) No steps were taken by owner to vitiate assess-

ments for long period of years;

(c) Appellants recognized and assented to validity

of liens in mortgage foreclosure procedure by which

title to property was acquired ;

(d) Appellants asserted validity of liens in mort-

foreclosure proceeding and made a recovery of

financial benefit based upon such validity ;

(e) Appellants assented to validity of liens by pay-

ing like assesments on other property.

This finding of estoppel, which is not assigned as error

here, is sufficient to support the decision of the State Court.

It was expressly so held in the case of Utley et al., v. City

of St. Peterburg, Fla., supra. Or like effect is the decision

of this Court in the case of

Theresa McSweeney v. Equitable Trust Company, 316

U. 8. 785; 62 S. Ct. 805, 86 L. Ed. 1191 (facts shown

by report of case from State Court 127 N. J. L. 209;

22 Atl. 2nd 282).

7

Wherefore, the appellee submits this statement showing

the appeal to be frivolous; that the question is not a sub-

stantial federal one; and, that the finding of estoppel is

sufficient to support the decision of the State Court; and

respectfully moves the Court to dismiss the appeal or in

the a!ternative to affirm the decision of the Supreme Court

of the State of Florida entered herein.

(s) Caas. 8. Ausiey.

(s) LeRoy CoLLins.

(s) Lawrence A. Truett.

Avusiey, Cotuins & Truett,

Attorneys for Appellee.

(2684)