Petition for A Writ of Certiorari — Harvey v. City of St. Petersburg

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LUCILLE HARVEY, AN UNMARRIED WOMAN,

PETITIONER,

VS.

CITY OF ST. PETERSBURG, A MUNICIPAL CORPO-

RATION, FOR THE USE OF GLENN V. LELAND, AS

RECEIVER OF THE CERTIFICATE SINKING FUND

OF THE CITY OF ST. PETERSBURG, FLORIDA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI AND BRIEF

IN SUPPORT THEREOF.

C. I. Carey,

St. Petersburg, Florida,

Attorney for Petitioner.

Carey & HARRISON,

Florida National Bank Building,

St. Petersburg, Florida,

Of Attorneys for Petitioner.

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INDEX ;

Petition for Writ :

Opinions Below__........._-.. eae ee 2 :

III: sicisnincasichetertecagiehestaaoua a a |

Question Presented __....... PEGA CS Nee OF UES RE SS 2 .

How Federal Question Raised and Considered in the é

Court Below.. ao sigs 2 é

Statement a 3 :

Specification of the Errors to Be Urged. :

Demeoes for Gree The Wi 7 :

Brief in Support of Petition

Opinion of Court Below... 9

Grounds of Jurisdiction Invoked 9

Statement of the Case 10

Specification of Errors... 10

Argument—

Improvement lien and tax, same type of ob-

ligation = 11

Equity is without power to appoint a receiver to

levy and collect taxes 12

Receiver to collect taxes is as improper as one

Or N,N esi genie seperation 12

Facts briefly stated. * aa 13

I a seston biiclernenisponigeetionts 15

ict cidachodicetendiaetie acid cesnieitnnish- nical adoniecisacelielainciciac 15

Remedy at law complete... i adel 17

Appointment of the receiver void 19

II INDEX

Authorities Cited

CASES

Byrne Realty Co. vs. South Florida Farms Co., 89

So. 326, 81 Fla. 805... ; 16

City of Roswell vs. Bateman, 20, N. M. 11, 146 Pac.

950, L. R. A. 1917D, 365_. ‘ alae a ae

Childs vs. Boots, 152 So. 214. me 17

Day vs. City of St. Augustine, 139 Se. 885, 104 Fla. 399 11

Dewhurst vs. Wright, 10 So. 685, 29 Fla. 223... 17

Einstein vs. Davidson, 17 So. 563, 35 Fla. 342... 19

Ex parte Wall, 107 U. S. 265, 27 L. Ed. 552 15

Gray vs. er of Santa Fe, si . m. ia 89 F. 2d

406 - a 11

Ria * VS. ‘Reclamation Dist. ‘No. 108, rth U. ‘Ss. “701 15

In re Fair, 132 Cal. 523, 60 Pac. 442; 64 Pac. 1000, 84

ie lerlcinicine 16

Independent School Dist. vs. . Reena National Cor

pany, 95 A. L. R. 686. 11

Kennard vs. Louisiana, 92 U. S. 480, 23 L. Ed. 478 . 15

Malone vs. Meres, 109 So. 685, 91 Fla. 709.........-_-___ . BB

Meriwether vs. Garrett, 102 U. S. 472, 515, 26 L. Ed.

ea ERTIES 12, 17, 18

Paducah vs. White, 244 Ky. 733, 51 S. W. 2d 935 18

Pennoyer vs. Neff, 95 U. S. 734, 24 L. Ed. 572... 15

Philadelphia Mortgage & Trust Co. vs. City of Omaha,

og MG ES ae SARS RRE eee tne tueeeso nes eaneee 11

Rees vs. City of Watertown, i9 Wall. 107, 22 L. Ed.

ets Saltenicanen avira 17, 18, 19

Southwestern Bell Telephone Co. vs. Oklahoma, 303

« | Y £ A & Reece 7

State ex rel. Lynch vs. District Court, 63 Pac. 2d

eS SN RL ener 12

Thompson vs. Allen County, 115 U. S. 550, 29 L. Ed.

IU icicsbansicaarinipniniehiciageabieicatemean 18, 19

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Pit LMA Pek RLET

INDEX

TEXTBOOKS AND ENCYCLOPEDIAS CITED

12 Am. Jur. 262

65 C: J. 332

1 Jones on Bonds and Bond Securities sei Ed.), Sec.

489 © te:

Freeman on x Judeinents, Vol. L Tee, 226, p. 444

1 Quindry on Bonds and Bondholders, Sec. 423

26 R. C. L. 1206

CHARTER OF City oF St. PETERSBURG

Chapter 6772 of the Acts of the eet of Florida,

1913, Sec. 108.

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ERUPT SRR

ae eT te ae cle

CaEDTA 6 OEE RELI Tk IAS NE DD Tite TE —

Rie SWRPA

Supreme Court of the United States

LUCILLE HARVEY, AN UNMARRIED WOMAN,

PETITIONER,

VS.

CITY OF ST. PETERSBURG, A MUNICIPAL CORPO-

RATION, FOR THE USE OF GLENN V. LELAND, AS

RECEIVER OF THE CERTIFICATE SINKING FUND

OF THE CITY OF ST. PETERSBURG, FLORIDA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI.

To the Supreme Court of the United States:

Lucille Harvey, an unmarried woman, prays that a

writ of certiorari issue to review the judgment of the

Supreme Court of Florida entered in the above case on

June 28, 1940, affirming the judgment and decree of the

Circuit Court of Pinellas County, Florida, which held

that a state court receiver was the proper party to fore-

close municipal public improvements liens against the

private property of petitioner:

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Eta batistece < . as went 35 . _— —

OPINIONS BELOW.

The order and decree of the Pinellas County Circuit

Court (R. 62) is not reported. The Supreme Court of the

State of Florida has rendered two opinions in this case,

one (R. 72) is reported in 189 So. 861, the other (R. 81)

is reported in 197 So. 116.

JURISDICTION.

The judgment of the Supreme Court of Florida, ex-

cepted to, was entered June 28, 1940 (R. 82). The juris-

diction of this court is invoked under the provisions of

Section 237 (b) of the Judicial Code as amended by the

Act of February 13, 1925, Section 344 (b) of Title 28,

United States Code Annotated.

QUESTION PRESENTED.

Can public improvement lien certificates, issued by

the City of St. Petersburg, a municipal corporation, be

legally foreclosed against real estate by a receiver, ap-

pointed by the Circuit Court of Pinellas County, Florida,

for the express purpose of foreclosing and collecting said

public improvement liens, and can the rightful owner

of said lands be legally divested of her title thereto in

this manner?

HOW FEDERAL QUESTION RAISED AND CONSIDERED IN

THE COURT BELOW.

Respondent, a state court receiver, filed a bill in the

Circuit Court of Pinellas County, Florida, to foreclose

certain public improvement lien certificates issued by the

City of St. Petersburg, against the property of petitioner.

Petitioner answered the bill, and incorporated in her an-

swer a motion to dismiss the bill, on the ground (R. 30):

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(a) That the appointment of the receiver for the

purpose of collecting said certificates was void, and that

all subsequent proceedings based thereon were invalid.

The motion to dismiss the bill of complaint was de-

nied in the lower court and this order of the lower court

was affirmed by the Supreme Court of Florida, 189 So.

861.

The cause proceeded to trial and final hearing. A

final decree was entered by the Circuit Court of Pinellas

County, Florida, granting the prayer of the receiver, fore-

closing the public improvement liens and ordering peti-

tioner’s property sold to satisfy the judgment entered.

An appeal was taken from this final order and de-

cree to the Supreme Court of Florida.

The federal questions here presented were pre-

sented to the Supreme Court of Florida by assignments

of error No. 1 (R. 67), No. 2 (R. 68), and No. 3 (R. 69).

The questions thus presented to the Supreme Court of

Florida were decided adversely to the contentions of pe-

titioner, and the decree and judgment of the Circuit

Court of Pinellas County, Florida, authorizing the fore-

closure of these municipal public improvement liens by

the receiver, was affirmed.

The Supreme Court of Florida is the court of last

resort of that state.

STATEMENT.

The City of St. Petersburg is a municipal corpora-

tion. Petitioner is the owner of certain real estate in

this City. Sometime prior to February, 1927, the City

caused certain sidewalks to be laid in front of and abut-

ting on petitioner's real estate. On April 5, 1927, the

City, to secure the costs of these alleged improvements,

issued its public improvement lien certificates against

petitioner’s properi;y Similar improvements were placed

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in front of and abutting on a large number of other

parcels of real estate in said City and similar public im-

provement lien certificates were issued against these

properties. All these certificates were sold by the City

to private parties and their payment was guaranteed by

the City. The certificates were not paid when they ma-

tured (R. 17).

The City entered into an agreement with the holders

of these various certificates under the terms of which

the City was to issue its general obligation refunding

bonds and deliver them to the certificate holders in re-

turn for the certificates. The terms of this contract

were complied with and the bonds were delivered to the

private holders and the City took up its public improve-

ment lien certificates and became again the owner there-

of. These certificates were deposited with Glenn V. Le-

land, the director of finance of the City, for collection

(R. 54). At the time of completing this exchange trans-

action, the City issued and delivered to these private in-

dividuals to whom it had delivered its refunding bonds,

its delinquent interest certificates, in payment of the in-

terest which had accumulated on the public improve-

ment lien certificates.

The director of finance of the City was directed to

proceed with the collection of these public improvement

certificates and the proceeds of these collections were to

be used to pay the delinquent interest certificates, just

described, and to retire the bonds which had been ex-

changed for the certificates.

About November 9, 1935, the holders of some of these

delinquent interest certificates brought a suit in the state

circuit court, and asked that a receiver be appointed to

take charge of and collect all of these improvement lien

certificates which were owned by the City (R. 17). On

November 12, 1935, the circuit court appointed as re-

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ceiver the same Glenn V. Leland who already held the

certificates for the City, as its director of finance, and

who was already charged with the duty of collecting

them, and as said receiver he was ordered to proceed to

collect the same certificates by actions at law or in equity

(R. 47).

The jurisdiction alleged for appointing the receiver

was that Glenn V. Leland, holding these certificates as

director of finance of the City, was a trustee and the

court had jurisdiction over trusts; further that he as re-

ceiver could perform his duties better (R. 47).

The receiver thus appointed, on June 1, 1938, filed

a bill of complaint for the purpose of foreclosing the pub-

lic improvement lien certificates which had been issued

against petitioner’s real estate as herein stated (R. 1).

To this bill of complaint an answer was filed by pe-

titioner in which was incorporated a motion to dismiss

the bill (R. 30). It was contended in this motion that

the appointment of the receiver to make collection of the

public improvement lien certificates of the City was void

and that the receiver has no legal authority to institute

the foreclosure proceeding (R. 35). This motion was

denied by the Circuit Court of Pinellas County. The

Supreme Court of Florida affirmed this ruling of the

circuit court, 189 So. 861.

On petition for certiorari the Supreme Court of the

United States declined to disturb this ruling, on the

ground that there was no final decree, 84 L. Ed. 95.

The cause then proceeded to final hearing and a final

decree was entered, ordering the foreclosure of the liens,

and a sale of the real estate covered by said liens to

satisfy the judgment therefor.

Appeal was taken from this final decree to the Su-

preme Court of Florida. The Supreme Court affirmed

the judgment and decree of the lower court (R. 82) 197

So. 116.

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The Supreme Court of Florida in announcing the law

of this case, on the first appeal, 189 So. 861, stated (R.

76):

«“* * * we are of the opinion that the lower

court had jurisdiction to appoint the receiver for the

express purpose of collecting by suit the special as-

sessment improvement liens issued by the City of

St. Petersburg, and there was no error in its ruling

on this question.”

The Florida Supreme Court also ruled (R. 80):

“The decree of the lower court in so far as it

denied the motion to strike designated parts of para-

graphs six and eight of the answer is accordingly

reversed and in all other respects affirmed and the

cause remanded for further proceedings not incon-

sistent with the views herein expressed.”

SPECIFICATION OF THE ERRORS TO BE URGED.

Petitioner urges that the Supreme Court of Florida

erred:

(1) In holding that a state circuit court had the

jurisdiction and authority to appoint a receiver for the

express purpose of collecting public improvement lien

certificates.

(2) In holding that a receiver appointed by a state

circuit court has the right and authority to institute

suits for the purpose of collecting municipal public im-

provement lien certificates.

(3) In affirming the decision of the Circuit Court

of Pinellas County, Florida, which ruled that a state

court receiver had authority and jurisdiction to proceed

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by suit to enforce collection of municipal public improve-

ment lien certificates.

REASONS FOR GRANTING THIS WRIT.

The state court receiver, under the decision of the

Supreme Court of Florida, will proceed to sell the lands

of petitioner to satisfy the judgment and decree entered

by the Circuit Court of Pinellas County, Florida, in favor

of the circuit court receiver. As a result of this sale

petitioner will be deprived of her property without due

process of law and in violation of the provisions of the

14th and 5th Amendments to the Constitution of the

United States.

The judgment of the Supreme Court of the State of

Florida, now excepted to, is in violation of the organic

law of the land and constitutes an encroachment by the

judiciary upon those powers of government which are

vested exclusively in the legislative department.

This judgment, authorizing a state receiver to collect

for a municipality, an obligation of the same nature as

a tax, is of such broad interest and is so directly in

conflict with the uniform policy of government recognized

and enforced in this country, that sufficient reason is

presented for granting the writ.

The federal question presented to the Supreme Court

of Florida and presented here was not specifically dis-

cussed by that court. This federal question was neces-

sarily decided, however, by the Florida Supreme Court,

in its final decision and judgment rendered and in its

opinions under date of June 16, 1939, and June 28, 1940.

Such a decision complies with the requirement of law and

gives jurisdiction here.

See Southwestern Bell Telephone Co. v. Oklahoma,

303 U. S. 206, 82 L. Ed. 751.

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Wherefore, petitioner respectfully prays that this pe-

tition for writ of certiorari be granted and that the

judgment of the Supreme Court of Florida rendered in

this cause be reversed.

C. I. Carey,

St. Petersburg, Florida,

Attorney for Petitioner.

Carey & HARRISON,

St. Petersburg, Florida,

Of Attorneys for Petitioner.