# Petitioners Brief — Harvey v. City of St. Petersburg

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1940
- **Citation:** 311 U.S. 697

## Text

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.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF
CERTIORARI.

OPINION OF COURT BELOW.

The opinion of the Supreme Court of Florida to be
reviewed in this case was rendered June 28, 1940, and is
reported in 197 So., at page 116.

This opinion refers to and adopts as the law of this
case a former opinion of the Florida Supreme Court ren-
dered in this case, reported in 189 So. 861.

The judgment and decree of the circuit court is not
reported.

GROUNDS OF JURISDICTION INVOKED.

The jurisdiction of this court is invoked under the
provisions of Section 237 (b) of the Judicial Code as

10

amended by the Act of February 13, 1925, Section 344 (b)
of Title 28 of United States Code Annotated.

STATEMENT OF THE CASE.

A concise statement of the case is set out in the
petition for writ of certiorari (pp. 3-6), which statement
is hereby adopted and made a part of this brief.

SPECIFICATION OF ERRORS.

A specification of the errors assigned is set out in
the petition for certiorari (pp. 6-7) to which this brief
is attached, which specification is hereby adopted and
made a part hereof.

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ARGUMENT.

Glenn V. Leland, a state court receiver, was appointed
for the express purpose of foreclosing municipal public
improvement liens against petitioner’s real estate and
other property, and he has secured a final decree of fore-
closure and an order to scl! petitioner’s lands.

Does this procedure deny to petitioner the rights,
privileges and immunities, and the protection of her prop-
erty, guaranteed to her under the provisions of the Fifth
and Fourteenth Amendments to the United States Con-
stitution, which provide that she shall not be deprived
of her property without due process of law.

This question is presented in specification of errors
numbers one, two and three (pp. 6-7 of Petition for Cer-
tiorari).

Improvement Lien and Tax, Same Type of Obligation.

An assessment by municipality for the costs of public
improvement is a tax.
Independent School Dist. v. Exchange National
Company, 95 A. L. R. 686.
Philadelphia Mortgage & Trust Company v. City
of Omaha, 57 L. R. A. 150.
City of Roswell v. Bateman, 20 N. M. 77, 146
Pac. 950, L. R. A. 1917D, 365.

Gray v. City of Santa Fe, (C. C. A. 10th) 89 F.
2d 406.

“A toll is a demand quite different from a special
assessment imposed for benefits. The latter is in the
nature of a tax and is often called a tax.”

Day v. City of St. Augustine, 139 So. 885, 104
Fla. 399.

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Equity Is Without Power to Appoint a Receiver to Levy
and Collect Taxes.

In the case of State ex rel. Lynch v. District Court,
63 Pac. 2d 333, 113 A. L. R. 746, the court held:

“The authorities hold without a dissenting voice
that equity is without power to appoint a receiver
to levy and collect taxes. 1 Jones on Bonds and
Bond Securities (4th Ed.), Section 489; 1 Quindry
on Bonds and Bondholders, Section 423; Rees v. City
of Watertown, 19 Wall 107, 22 L. Ed. 72; Meriwether
v. Garrett, 102 U. S. 472, 515, 26 L. Ed. 197; Thomp-
son v. Allen County, 117 U. S. 550, 29 L. Ed. 472.”

Receiver to Collect Taxes Is As Improper As One to
Levy Same.

In the case of Meriwether v. Garrett, 102 U. S. 472,
515, 26 L. Ed. 197, the rule is announced:

“In the distribution of the powers of govern-
ment in this country into three departments, the
power of taxation falls to the legislative. It belongs
to that department to determine what measures shall
be taken for the public welfare and to provide the
revenues for the support and due administration of
the government throughout the state and in all its
subdivisions. Having the sole power to authorize the
tax, it must equally possess the sole power to pre-
scribe the means by which the tax shall be collected,
and to designate the officers through whom its will
shall be enforced.”

Respondent recognizes these principles of law but
says that the legislature in this case has provided other-
wise.

Petitioner presents now, as she did in the lower court,
the same section of the charter of the City of St. Peters-
burg, which respondents rely upon in support of their
contention.

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Section 108 of the Charter of the City of St. Peters-

burg, Chapter 6772, Acts of Legislature, 1913, is as follows:

“In all the cases mentioned in this act where

the City of St. Petersburg has acquired, or may here-

after acquire, liens for improvements, such liens, or

any of them may be enforced in the following manner

by the said City or in the name of said City by

the holders; first, by a bill in equity; second, by a
suit at law.”

Apparently the receiver and the Florida Supreme
Court took the position that the receiver is the ‘holder’
of these certificates, and the contention is that the legis-
lature, by this Section 108 of the City Charter, has au-
thorized the procedure taken.

Petitioner urges that this legislative act means that
these municipal improvement liens must be collected by
the City, if the City owns them; if owned by third parties,
they may be collected in the name of the City.

It is not denied that the City owns these public
improvement liens.

Facts Briefly Stated.

These are the facts: The City of St. Petersburg is-
sued its public improvement lien certificates. They were
brought by private individuals. The City failed to pay
them when they matured. The City then issued its gen-
eral obligation refunding bonds and gave these bonds to
the certificate holders and took up the certificates, and
thus it became again the owner and holder of these cer-
tificates. 'They were deposited with Glenn V. Leland,
the director of finance of the City. This director of
finance was charged with the duty of collecting these
certificates, and the proceeds were to be used in paying
certain delinquent interest certificates which the City
had issued and delivered to the former individual owners

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of the improvement certificates, to whom it had delivered
its general obligation bonds in lieu of said certificates,
and to retire these bonds (p. 4 of Petition for Certiorari).

Certain owners of these delinquent interest certif-
icates brought a bill in equity in the state court, seek-
ing the appointment of a receiver to take charge of these
improvement lien certificates held by the director of fi-
nance for the City. On this bill, a receiver was appointed.
He was the same director of finance who already held
the certificates for the City, and the order, appointing
him, provided that he, as the court’s receiver, should take
from himself, as trustee, these same certificates and pro-
ceed to collect them by actions at law or in equity. This
director of finance, then, as receiver, proceeded to fore-
close these municipal lien certificates against petitioner’s
property.

The receiver and the Supreme Court of the State of
Florida say that this history shows that the legislative
intent, as set out in Section 108 of the charter of the City
of St. Petersburg has been complied with, and by reason
of that section of the charter, a state court receiver has
authority to foreclose these municipal liens, presumably
because he holds them.

Petitioner urges the fact that the City of St. Peters-
burg is the owner of these improvement certificates and
that it properly held them by its director of finance, and
it and its director of finance were charged with the duty
of collecting these certificates; and that there was neither
need nor power in the state court to appoint this director
of finance as receiver, charged with no other duty except
identically the same duties already resting upon him as
director of finance of the City to collect these certificates
and use the proceeds to pay the delinquent interest cer-
tificates and the refunding bonds which had been given
for the certificates.

PONE MN. MR RNS ly

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Petitioner says that the City of St. Petersburg is the
owner, and although these certificates are now in the
physical possession of this state court receiver, that the
City, as a matter of fact and law, is still the holder of
these certificates.

Petitioner urges that the legislative authority as set
out in the city charter, Section 108 thereof, when con-
sidered in connection with the facts, does not constitute
or come within an exception to the uniformly recognized
principle of law hereinabove set out, and that this pro-
ceeding by this state court receiver for the purpose of
foreclosing municipal improvement liens against peti-
tioner’s land is not justified or authorized by the Section
108, of the city charter, is in violation of the due process
provisions of the Federal Constitution, and contrary to
the organic law of the land.

Due Process of Law.

In Pennoyer v. Neff, 95 N. S. 734, 24 L. Ed. 572, the
court in defining the words ‘“‘due process of law” says:
“They then mean a course of legal proceedings
according to those rules and principles which have

been established in our systems of jurisprudence for
the protection and enforcement of private rights.”

See:

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

Hagar v. Reclamation Dist. No. 108, 111 U.S. 701,
28 L. Ed. 569.

Ex parte Wall, 107 U. S. 265, 27 L. Ed. 552, 12
Am. Jur. 262 et seq.

Trusts.

The receiver and the Florida Supreme Court are
furthermore seeking to justify their position on the theory
that the circuit court was dealing with a trust fund, that

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equity has jurisdiction over trusts, and, therefore, has
jurisdiction to appoint the receiver for the express pur-
pose of performing the governmental function of collecting
taxes (assessments).

Petitioner urges that this theory is a fallacy and
without law to support it.

It is insisted that the general equity power which a
chancery court has to appoint a receiver and the general
proposition that a chancery court has jurisdiction over
trusts do not give power or jurisdiction to that court to
appoint a receiver for the express purpose of doing a
thing which the organic law says that a receiver cannot
do, and such appointment is void.

“Every judgment must contain three jurisdic-
tional elements; namely, jurisdiction of the subject
matter; jurisdiction of the person; and the power or
authority to render the judgment.”

Freeman on Judgments, Vol. I, Sec. 226, p. 444.

In 65 C. J. 332, the rule is announced thus:

“The right to create an express trust is subor-
dinate to the fundamental principles of equity, and
an express trust created in violation of such principles
is a nullity. An express trust cannot be created to
effect a purpose which is illegal.”

In 26 R. C. L. 1206, a similar rule is announced:

“If the creation of the estate depends on the exe-
cution of a void trust, then it can never come into
existence.”

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

1000, 84 A. S. R. 70.

In the case of Byrne Realty Co. v. South Florida
Farms Co., 89 So. 326, 81 Fla. 805, the Florida court says:

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“A lawful subject matter and competent parties
having appropriate authority in the premises are
requisite to the creation of an express trust.”

In the case of Childs v. Boots, 152 So. 214, the court says:

“But a court may have jurisdiction of the parties
and of the subject matter of a cause, and still be
without jurisdiction to enter in such cause a par-
ticular kind of decree which would be wholly un-
authorized. This rule is conceded on the authority
of Grace v. Hendricks, 140 So. 790.”

In the case of Dewhurst v. Wright, 10 So. 685, 29 Fla.
223, the Florida Supreme Court says:

“The trouble with complainants’ case is that they
are asking a court of equity to aid them in something
which is contrary to the policy of the law. This a
court of equity will not do, but, judging those who
pray at its hands relief which the courts of law can-
not afford by the case they make for themselves, it
will leave them where they are if it appears they are
seeking to evade the policy of the law as defined
in a public statute (citations).”

In the case of Rees v. City of Watertown, 86 U. S.
107, 22 L. Ed. 72, this court says:

“A court of equity cannot, by avowing that there
is a right but no remedy known to the law, create a
remedy in violation of law, or even without the au-
thority of law. It acts upon established principles
not only, but through established channels.”

See, also, Meriwether v. Garrett, supra.

Remedy at Law Complete.

Petitioner urges that when Glenn V. Leland, the di-
rector of finance of the City of St. Petersburg, received

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these municipal public improvement liens for the purpose
of collecting them, it became his duty as an officer of
the municipality to obey these instructions. If he failed
or refused to perform this duty, the remedy at law was
full and complete and no trust theory and no equity juris-
diction was needed.

In Thompson v. Allen County, 115 U.S. 550, 29 L. Ed.
472, on page 473, the rule is announced:

“The remedy was by mandamus at law, and ‘We
have been furnished with no authority for the sub-
stitution of a bill in equity and injunction for the writ
of mandamus, * * *’ a court of equity is invoked as
auxiliary to a court of law in the enforcement of its
judgment only where the latter is inadequate to af-
ford the proper remedy.

By inadequacy of the remedy at law is here meant,
not that it fails to produce the money (that is a very
usual result in the use of all remedies), but that in
its nature or character it is not fitted or adapted to
the end in view.”

See, also:
Rees v. City of Watertown, 19 Wall. 107, 22 L. Ed.
72.
Paducah v. White, 244 Ky. 733, 51 S. W. 2d 935.
Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed.
197.

Petitioner urges that the Supreme Court of Florida
committed error when it held and ruled that this receiver
has powers and rights and authorities which have never
been accorded to any other receiver, and that said ruling
is in violation of the constitution and in direct opposition
to the uniformly recognized principles of court procedure
and organic law.

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Appointment of the Receiver Void.

Petitioner urges that although chancery courts have
the power to appoint receivers, this power is not broad
enough to authorize even a chancery court to do an il-
legal thing which is contrary to the organic law of the land.
When this chancery court attempted to appoint this re-
ceiver for the express purpose of performing this govern-
mental function, it exceeded its power and the purported
order of appointment for this purpose was void.

“A judgment that is absolutely null and void—

a mere brutum fulmen—can be set aside and stricken

from the record, on motion, at any time, and may be
collaterally assailed; * * *”

Einstein v. Davidson, 17 So. 563, 35 Fla. 342.

“Tf the defect of jurisdiction springs from want
of power, the result is void; * * *”

Malone v. Meres, 109 So. 685, 91 Fla. 709.

See, also:

Rees v. City of Watertown, 19 Wall. 107, 22 L. Ed.
72.

Thompson v. Allen County, 115 U. S. 550, 29 L.
Ed. 472.

Wherefore, petitioner respectfully prays that her
prayer for a writ of certiorari be granted.
Respectfully submitted,
C. I. CaREy,
St. Petersburg, Florida,

Attorney for Petitioner.
Carey & HARRISON,
Florida National Bank Building,
St. Petersburg, Florida,

Of Attorneys for Petitioner.

Petey

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386415_0186%3A2. Public record. Not legal advice.