Petition for Writ of Certiorari — Rabin v. Lake Worth Drainage District

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DEC 14 1955

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IN THE

Supreme Court of the United States

October Term, 1455

No. 07 0

Jack Rapin, doing Business as Jack RABIN Farms,

Petitioner,

Vv.

Lake Worth Jratnace District, a general drainage

district, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF FLORIDA

Witutiam E. Miter

1100 Shoreham Building

Washington 5, D. C.

Counsel for Petitioner

Of Counsel:

STEPTOE & JOHNSON

1100 Shoreham Bldg.

Washington 5, D. C.

JOHN A. Pau

703 Citizens Building

West Palm Beach, Florida

ee

Press or Byron S. Apams, Wasxincron, D. C.

INDEX

Page

BR Pee erent Renee Sere cae ae

CUE Seile cain 605 ak oA ls 2

sii Se eg OE ee ea NEY. 2

Constitutional Provision and Statutes Involved ...... 3

epee OE TN GI Si sas kb on Shennan. 4

I 5 kas dkasd he sea wotthekedbdeeid Ph bs 6

PO iA blade ths eee ids dok Ch 17

TABLE OF CASES

American Hospital Supply Corp. v. York County In-

stitutional District, 123 F. Supp. 187 ............

Bates v. Drainage Commissioners, 273 TIl. App. 335....

Bradbury v. Vandalia Levee & Drainage District, 236

ete hg, bn CO a eee:

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 233,

OWN Re S ai xe ckuk uss curks encanta ees ee

Jones et al. v. Al Johnson Construction, 300 N.W. 447

Lowes v. Pennsylvania Turnpike Commission, 125 F.

oe ee ot OF ae ee ee eae

Pumpelley v. Green Bay Company, 13 Wall. 166, 177-8

Richards v. Washington Terminal Co., 233 US. 546. __

ii Index Continued.

Page

Sauer v. New York, 206 U.S. 536 ................005 9

State v. Taylor, 224 Mo. 393, 123 S.W. 892 ........... 13

State Road Department v. Tharp, 146 Fla. 745, 1 So.

Cette eek rit eec eva aa Chee peKAheeans 8

Sweet v. Rechel, 159 U.S. 380, 398 .................. 7

Swift & Company v. City of Newport News, 105 Va.

a teeta ea NR AS 5g bkA 4896 04.008 11

Tomasek v. ES OE TD cscs cca cnseecess 9

United States v. Causley, 328 U.S. 256 ............... 8

United States v. Cress, 243 U.S. 316 ................ 8

United States v. Lee, 106 U.S. 196 ................... 8

United States v. Lynch, 188 U.S. 445 ................ 8

IN THE

Supreme Court of the Enited States

October Term, 1955

_

No.

Jack Rasrn, doing Business as Jack RaBin Fars,

Petitioner,

Vv.

Lake Worth Drarnace District, a general drainage

district, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF FLORIDA

To the Honorable the Chief Justice of the United

States and the Associated Justices of the Supreme

Court of the United States:

Jack Rabin, doing business as Jack Rabin Farms,

petitioner herein, respectfully prays that a writ of

certiorari issue to review the judgment of the Supreme

Court of the State of Florida, entered September 16,

1955, affirming the judgment of the Circuit Court of

the Fifteenth Judicial Circuit in and for Palm Beach

County, Florida, filed December 17, 1954, which dis-

missed petitioner’s complaint with prejudice.

—neage

2

OPINION BELOW

The opinion of the Supreme Court of Florida (App.

6a) has not been officially reported but is reported

in 82 So. 2d. 353. (Adv. sheets Southern Reporter

October 20, 1955). The Opinion on Rehearing Granted

(App. 13a) is not reported.

JURISDICTION

The judgment sought to be reviewed was entered

July 1, 1955, (App. 6a) rehearing was granted July

27, 1955 and the Court adhered to its first opinion in

an Opinion on Rehearing Granted filed September 16,

1955. (App. 13a)

Jurisdiction of this Court is invoked under Title 28

United States Code, Section 1257, which provides, in

part:

‘‘Final judgments or decrees rendered by the

highest court of a state in which a decision could

be had, may be reviewed by the Supreme Court

as follows:

* * * * * aa x 7 *

(3) By Writ of Certiorari ... where any title,

right, privilege or immunity is specially set up or

claimed under the Constitution ...”’

The Supreme Court of Florida is the highest court

of that state.

QUESTIONS PRESENTED

1. Does the failure of the legislature to act in au-

thorizing suit to be brought against a State agency

contravene the common law which provides a remedy

for every wrong and the constitutional guaranties of

Sections 4 and 12 Declaration of Rights, Constitution

3

of Florida and the Fourteenth Amendment to the Fed-

eral Constitution ?

2. Is the destruction of private property by a State

agency in the commission of a trespass or a tort a

deprivation of property without due process of law

under Sectien 12 Declaration of Rights Constitution

of Florida and the Fourteenth Amendment to the

Federal Constitution where a complaint for restitution

against such agency is dismissed because of sovereign

immunity to suit?

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

Amendment XIV, Constitution of the United

States:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No state shall make

or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”’

Section 4, Declaration of Rights, Constitution of

Florida, Vol. 25 Fla. Statutes Ann. 1941, p. 518:

‘*Section 4. All courts in this State shall be open,

so that every person for any injury done him in

his lands, goods, person or reputation shall have

remedy, by due course of law, and right, and

justice shall be administered without sale, denial

or delay.’’

Section 12, Declaration of Rights, Constitution of

Florida, Vol. 25 Fla. Statutes Ann. 1941, p. 590:

a

‘See. 12. No person shall be subject to be twice

put in jeopardy for the same offence, nor com-

lled in any criminal case to be a witness against

imself, nor be deprived of life, liberty, or prop-

erty, without due process of law; nor shall private

property be taken without just compensation.’’

Section 22, Article ITI, Constitution of Florida,

Vol. 25, Fla. Statutes Ann. 1941, p. 912:

‘See. 22. Provision may be made by general law

for bringing suit against the State as to all lia-

bilities now existing or hereafter originating.”’

Portions of the General Drainage Law, Sec. 298,

Vol. 12, Fla. Statutes Ann. 1941, p. 349 is copied

in the Appendix (App. 13a).

STATEMENT OF THE CASE

Petitioner, a farmer, filed a complaint against re-

spondent, Lake Worth Drainage District, alleging that

he had planted peppers on land adjoining a canal

maintained by the District. The District as part of

its maintenance program in order to destroy weeds

and hyacinths glutting the canal caused the canal to

be sprayed without notice with a highly dangerous

chemical herbicide known as ‘‘2-4-D’’, which was

blown upon petitioner’s plants and which contami-

nated the water that petitioner was then using for

irrigation of his farm. As a result of the operation,

petitioner’s crop was damaged and largely destroyed.

There were three counts in the complaint, one based

on negligence, one on trespass and one on the unlawful

taking of property. It was averred that as a condition

precedent to the formation of the District, the land-

owners in the District pledged their lands as security

for payment of expenses of maintaining the District

and its improvements, Sections 298.01 Florida Stat-

5

utes 1941, and that the damage to petitioner was the

result of fulfilling the obligation.

The Lake Worth Drainage District was organized

under the general drainage law of Florida, Sec. 298.01,

supra, by the petition of land owners to the Court, for

the purpose of improving and reclaiming their lands.

It is maintained and operated by the landowners. It

is not supported by state funds, its officers are not

officers of the State of Florida. Neither the State nor

the general public has any voice in its affairs. Public

benefits are incidental and secondary.

The federal question was timely raised and con-

sidered. The third count of petitioner’s complaint

alleges:

“That the defendant has damaged and taken

the plaintiff’s property without just compensa-

tion contrary to Section 12 of the Declaration of

Rights of the Constitution of the State of Florida

and contrary to the Fourteenth Amendment, Sec-

tion 1 of the Constitution of the United States.”

(App. 4a)

See also the petition for rehearing (App. 12a) assert-

ing that the damage to petitioner’s property was a

taking within the meaning of the Federal Constitu-

tion for which just compensation must be made.

The lower court in granting a motion to dismiss

the complaint for failure to state a claim upon which

relief may be granted has denied to petitioner the due

process of law, guaranteed to him under both the State

and Federal Constitutions.

The Supreme Court of Florida, in affirming the

lower court, likewise passed upon, or rather over, peti-

tioner’s Constitutional rights, saying:

“3

6

‘‘We revert to the decisions upon which the

Appellant relies to support his contentions that

his property has been taken without just compen-

sation. In these cases the view was expressed that

the constitutional guaranty that one’s property

may not be so taken cannot be thwarted by the

lack of legislative authorization. It seems to us

that this point was settled in this State thirty

years ago, ...”’

The action of the lower court in dismissing peti-

tioner’s complaint was affirmed on Appeal, the Su-

preme Court of Florida saying in part:

‘‘Appellant’s crop was not taken by the state

agency, ... It was destroyed and the destruction

if negligent, constituted a tort. And it is the tort

for which the Appellee is not under the law re-

sponsible because it was acting in a governmental

capacity as a public corporation.”’

Justice Thornal, concurring specially, concurred

for the reason that he did not believe the district could

be coerced to pay the judgment, but stated further:

‘“‘T do not agree that a drainage district under

Chapter 298, supra, is either a state agency or is

entitled to enjoy the immunities granted to state

agencies.”’

ARGUMENT

The Supreme Court of Florida held that petitioner

could not recover from the respondent because it was

an agency of the government, against which no action

could be brought. In addition, it held that petitioner’s

property was not taken without just compensation in

in violation of the Fourteenth Amendment of the

United States Constitution and Section 4, Declaration

of Rights, Constitution of Florida. In so deciding, the

7

Court rendered a decision conflicting with those of

this Court and with decisions in a majority of the

states.

Under the decisions of this Court, destruction of a

citizen’s property by the government is a taking for

which, under the Fifth and Fourteenth Amendments,’

just compensation must be made. Sovereign immunity

trom suit does not protect governmental agencies from

suits for just compensation because the provisions of

the Constitution are mandatory and self-executing.

Contrary to the decision below, it is not necessary

that property be absolutely taken in the narrowest

sense of the word. As this Court said in Pum pelly v.

Green Bay Company, 13 Wall 166, 177-8:

“It would be ... [an] unsatisfactory result, if

. ., it shall be held that if the government refrains

from the absolute conversion of real property to

the uses of the public, it ean destroy its value en-

tirely, can inflict irreparable and permanent in-

jury to any extent, can in effect, subject it to total

destruction without making any compensation, be-

cause, in the narrowest sense of that word, it [has]

not [been] taken for the public use.”’

See, also, Pennsylvania Coal Co. v. Mahon, 260 U.S.

393; Welsh v. Swasey, 214 U.S. 91.

Thus it has been held that where the noise and glaring

lights of planes landing at or leaving an airport leased

to the United States interfered with the normal use of

a neighboring farm as a chicken farm, there was a tak-

’ There is no basis for distinguishing the cases arising under the

two Amendments in this regard. Chicago, B. & Q. R. Co. vy. Chicago,

166 U.S. 226, 233, 236-7: Sweet v. Rechel, 159 U.S. 380, 398.

ae

ing sufficient to give the owner a constitutional right to

compensation. United States v. Causby, 328 U.S. 256.

In Portsmouth Harbor Land € Hotel Co. v. United

States, 260 U.S. 327, it was held that firing guns across

a citizen’s land constituted a taking for which just

compensation had to be made. Similarly, in Richards

; v. Washington Terminal Co., 233 U.S. 546, this Court

held that a corporation chartered by Congress to con-

struct a tunnel and operate railway trains therein was

| liable for damages to an individual whose property

was injured by smoke and gas forced from the tunnel.

The damage was a taking.

2

In addition to the cases cited above see, United

States v. Lynch, 188 U.S. 445; United States v. Cress,

243 U.S. 316; United States v. Lee, 106 U.S. 196.

; No one has ever suggested, when there is a taking of

3 property for which just compensation is due, that

the State needs to create a special remedy. The pro-

visions of the Constitution create the cause of Action.

8

3 As the Supreme Court of Florida itself said in State

: Road Department v. Tharp, 146 Fla. 745, 1 So. 2d

868 :

eat g

“Tf a State agency can deliberately trespass on

and destroy the property of the citizen in the man-

ner shown to have been done here and then be re-

lieved from making restitution on the plea of non-

liability of the State for suit, then the constitu-

tional guaranty of the right to own and dispose of

property becomes nothing more than the tinkling

of empty words. Such a holding would raise ad-

ministrative boards above the law and clothe them

with an air of megalomania that would eternally

jeopardize the property right of the citizens. It

would reverse the order of democracy in this

country and head it into a blind alley.”’

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MAS LIE DAA PATE NES

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9

This is not a case involving consequential damages.

Meuer v. Richmond, 172 U.S. 82; Sauer v. New York,

206 U.S. 536. It involves a taking—a destruction of

petitioner’s crops. Cases refusing recovery for conse-

quential damage all involve the situation where there

is a restriction on the use of private property. See

Pennsylvania Coal Co. v. Mahon, supra, 260 U.S. at

413-14.

It is respectfully submitted that the decision below

does not give effect to the Fourteenth Amendment to

the Constitution as expounded by this Court in the

cases cited above. Because this decision is in conflict

with those cases a writ of certiorari should be granted.

The court below’s holding that the respondent

drainage district is a state agency which cannot be

sued in the absence of special legislation is of consid-

erable importance. It is in conflict with the majority of

recent decisions of other states.

For instance, in the recent case of Tomasek v. State,

248 Pac. 2d 703, Oregon, decided in September 1952,

the Court upheld a judgment rendered against the

Oregon State Highway Commission. Ia a very well

reasoned opinion the Court said:

“The constitutional right and protection given

the owner of property by Article 1, Section 18,

Oregon Constitution, is unquestionably self-exe-

cuting. It is an absolute right, and, for its viola-

tion, the injured person may have his remedy in

a common law action tn the absence of statutory

provision therefor. This remedy should not be,

nor is it, dependent upon legislative action. Jt is

manifest that the legislature has no power to abro-

gate or deny a constitutional right, nor may a

right that is constitutionally guaranteed be taken

10

away or rendered negatory by failure of the legis-

lature to act.

“The constitution having created the absolute

right in the owner of property as against the

State, such provision carried with it a waiver of

immunity on the part of the State to actions

prosecuted for damages for its violation.’? (Em-

phasis supplied.)

In Chick Springs Water Co. v. State Highway De-

partment, 159 S. C. 481, 157 S. E. 842, the South Caro-

lina Court said:

“The basis of the decision of the trial judge was

that this action is in effect against the state, and

in no case can the state be sued without its con-

sent. * * * There is however, one important ex-

ception to the rule: In actions against the state

for compensation for property taken, the consti-

tution itself gives consent for the state to be sued.

and where the constitutional convention has given

such consent, no act of the general assembly is

needed for that purpose, nor is it in the power of

that body to deny it for ‘a constitutional provi-

ston shall never be construed as dependent for its

efficacy and operation upon the legislative will.’ ”’

(Emphasis supplied.)*

* The provision of Oregon’s Constitution, Article 1, Seetion 18,

which was before that Court reads:

“*Private property shall not be taken for publie use, nor the

particular services of any man be demanded, without just

compensation. ”’

* Article 1, Section 17 of the South Carolina Constitution reads:

“Private property shall not be taken for private use without

the consent of the owner, nor for publie use without just com-

pensation being first made therefor.’’

11

Likewise in Virginia, in the case of Swift & Co. v.

City of Newport News, 105 Va. 108, 52 S. E. 821, the

Court said:

‘*So that when the provisions of a Constitution,

as does ours, no less than the provisions in the eun-

stitution of the State of West Virginia and Illi-

nois, forbids damage to private property, and

points out no remedy, and no statute affords one,

for the invasion of the right of property thus

secured, the provision is self-executing, and the

common law, which provides a remedy for every

wrong, will furnish the appropriate action for

oS of such grievance.’’ (Emphasis sup-

plied.

In the case of Jones et al. y. Al Johnson Construc-

tion, 300 N. W. 447, Minnesota, decided in 1941, an

action was brought by owners of buildings against a

sanitary district to recover for damages caused as a

result of the district blasting with dynamite to con-

struct a tunnel. The defendant contended that its con-

struction was a lawful undertaking under the sover-

eign authority of the State. The Court held that the

defendant was not so endowed and affirmed the judg-

ment against the Sanitary District.

In the recent case of Cooper v. Sanitary District

No. 1, 19 N. W. 2d. 619, Nebraska, decided in 1945.

the Court squarely held:

‘“‘A sanitary drainage district is liable for negli-

gence in the construction and maintenance of its

works.’’ (Emphasis supplied.)

This was an action to recover damages to growing

crops on certain land belonging to the plaintiffs on

account of negligence in the construction and mainte-

nance of drainage channels. The defendant contended

12

that it was immune to suit under the theory of sover-

eign immunity. The Court rejected this theory of the

defendant and stated that the constitutional guarantees

of the plaintiff may not be abrogated and affirmed a

judgment for the plaintiffs. In a well considered opin-

ion the court said:

‘““The state is a sovereign and cannot be sued

without its consent. Being a sovereign, it is pre-

sumed that it will do justice to its citizens without

compulsion, and even the sovereign itself under

our constitution cannot take or damage private

property without compensation.”’

“The ground of distinction between corpora-

tions which are liable for the negligent or wrong-

ful act of their agents or servants and those which

are not is that public involuntary quasi corpora-

tions are mere political or civil divisior: of the

state, created by general laws to aid in tk - general

administration of the government, and ure not so

liable, while those which are liable have privileges

conferred upon them at their request, which are a

consideration for the duties imposed upon them.

* * * Neither the state nor any part of it, is di-

vided by the legislature into drainage districts,

nor do they have public duties thrust upon them

without their consent. The organization of a drain-

age district is for the sole and exclusive benefit

of the territory within the district * * * and the

lands within the district are assessed to pay the

whole cost on the theory that they alone are bene-

fited. * * * The organization is not different in

principal from the organization of cities, villages

or towns under a general law, on a petition of a

certain proportion of the legal voters within the

territory. It is correct to say that a drainage dis-

trict is a quasi corporation if the act under which

it is organized does not make it a corporation in

fact ; but it is not created for political purposes or

for the administration of a civil government.

13

In disposition of the question of liability of the dis-

trict for damages for negligence it was said in the

opinion:

‘The district chooses its own Board of Directors,

and its work is done under its direction and super-

vision. It is given certain additional powers and

privileges because the formation of the district

‘will be for the public health, convenience and

welfare’. It is given the power of eminent do-

main as are railroads and ordinary municipal cor-

porations. In the conduct of their affairs they

must not negligently injure others. If they do,

they are liable for such injuries as cities and vil-

lages are.”’

In the recent case of City of Atlanta v. Kenny, 83

Ga. App. 823, 64 S. E. 2d. 912, decided in 1951, the

Court in holding the City liable for damages in under-

mining the plaintiff’s property stated:

‘The plaintiffs in error seemed to take the posi-

tion that since the city of Atlanta did not actually

appropriate or use any of the plaintiff’s property,

and that since there was no intention to destroy

the plaintiffs’ building, that no recovery can be

had for its mere negligent or inadvertent or acci-

dental destruction. This position is not tenable.

While the authority of the City is to establish

fire stations and appurtenances thereto for the

purpose of providing the citizens with fire protec-

tion, is a governmental function and for mere

negligence or errors committed by the officers or

employees of the City in performing such func-

tion, the City is not liable, where the City damages

or takes property of one as a result of the per-

formance of such governmental function, a right

of action under the constitution accrues.”

See also State v. Taylor, 224 Mo. 393, 123 S. W. 892.

14

So it appears that under decisions of Oregon, South

Carolina, Virginia, Minnesota, Nebraska, Lllinois,

Georgia, West Virginia and Missouri, similar provi-

sions of State Constitutions are held to be self execut-

ing. The doctrine of sovereign immunity is limited and

constrained by the requirement of just compensation,

to the sovereign itself.

The recent case of Griswold v. Town School District

of Wethersfield, 88 Atl., 2d. 829, Vermont, decided in

1952, discarded the doctrine of immunity from liability

for a school district and upheld an action of tort. The

Court used this language: ;

“The defendant demurred to the complaint on

the ground that it was required as a matter of law

to take such measures as were necessary to get

an adequate water supply for its Perkinsville

School, and in so doing it was engaged in a gov-

ernmental activity directly connected with the

purpose for which it was created and thus it is

immune from liability for the injuries claimed in

the complaint to have been suffered.

“‘The question is whether the complaint states

a good cause of action as against the ground of

the demurrer.

‘‘This doctrine of immunity from liability does

not apply where the injury complained of is the

taking of private property for public use without

compensation. (Citing many cases)

‘“‘This rule has been recognized and applied in

our own cases.

“Tt has also been recognized in cases having

to do with damage to property but not with the

taking thereof. (Citing Cases)

“The liability under our constitutional provi-

sion is not dependent on negligence but on the

15

taking of private property and this unlawful tak-

ing gives the right of action.

‘Moreover, it-is difficult to find any good rea-

son why there should be liability for a taking

through no negligence but non-liability if the

same taking is the result of negligence. Such a

doctrine it seems to us would be most unjust and

indeed a monstrous doctrine permitting a way for

avoiding liability under the constitutional pro-

vision’’. (Emphasis supplied.)

In Eingenburg v. Lincoln Lansing Drainage Dis-

trict, 310 Ill. App. 179, 33 N. E. 2d. 906, decided in

1941, the Court held that a landowner might maintain

an action against a drainage district for the overflow-

ing of his land as a result of defective drainage. The

Court in the course of its opinion stated that:

“The controlling question of law raised is

whether a drainage district organized under the

Farm Drainage Act can in the performance of its

duties, negligently and wrongfully damage and-

destroy the property adjoining its right of way

without liability for such damage. Appellant con-

tends that because of the constitutional provision

that private property cannot be taken or damaged

for public use without just compensation and the

further provisions that urges a remedy for every

wrong and under the holdings of the Supreme

Court of this State he is given a right of action

under the facts proven in this ease.”

The Court affirmed the judgment of the lower Court

against the Drainage District and in so doing approved

and confirmed the holding of the case of Bradbury v.

Vandalia Levee and Drainage District, 236 Tl. 36, 86

N. E. 163. The Court quoted with approval from its

earlier decision in the case of Bates v. Drainage Com-

missioners, 273 Ill. App. 335, and said:

16

‘‘Tt seems to us that in burning off the weeds

and brush on the right of way, the Commissioners

of the Drainage District were pursuing their pro-

prietary or private functions and are liable for

damages caused by their negligent or wrongful

ac

In a very recent case, Department of Highways v.

Corey, 247 S. W. 2d. 389, decided in Kentucky, March,

1952, the Court said:

‘‘The question is whether the State Highway

Department, an arm of state sovereignty, is im-

mune from an action sounding in tort where dam-

age of such a nature has been inflicted upon real

estate by the negligent acts of the department as

to amount, in all practical effect, to a taking of

property for public use without just compensa-

tion therefor.”’

There was presented the question in the cited case as

to whether or not the physical damage was of such a

nature as to amount to a taking of property for a

public purpose without just compensation. On this

point the Court quoted from the case of Commonwealth

v. Kelly, 314 Ky. 581, 236 S. E. 2d, 697, and said:

‘“‘The appellants argue that to show a taking of

property, the petition must state facts from which

the Court may infer a total ouster from posses-

sion, or at least a substantial deprivation of all

beneficial use of the land affected. It seems to us,

however, that an interference with the legally pro-

tected use to which land has been dedicated, which

destroys that use or places a substantial and addi-

tional burden on the landowner to maintain that

use, is a taking of his property.”’

17

CONCLUSION

The extension of the dectrine of sovereign immunity

to agencies such as has been done in the instant case

would raise administrative boards above the law and

would open the door to widespread destruction and

damage whereby the constitutional guaranties of due

process and just compensation would become empty

words.

The delineation of the doctrine of sovereign im-

munity as applied to state agencies is of importance

to the public. See American Hospital Supply Corp.

v. York County Institutional District, 123 F. Sup. 187

(decided July, 1954) and Lowes v. Pennsylvania

Turnpike Commission, 125 F. Sup. 681. Particularly

is this so in modern times when Turnpike Authorities,

Port Authorities, Drainage and Reclamation Districts

and other administrative boards wield an ever increas-

ing impact upon the rights of the citizens.

WHEREFORE petitioner respectfully submits that the

Writ of Certiorari issue that this Court may review

the decision of the Supreme Court of Florida and

determine whether that Court has deprived petitioner

of rights guaranteed by the Constitutions of Florida

and the United States.

Respectfully submitted,

WituiamM E. MILLER

1100 Shoreham Building

Washington 5, D. C.

Of Counsel: Counsel for Petitioner

STEPTOE & JOHNSON

1100 Shoreham Bldg.

Washington 5, D. C.

JoHN A. Pau.

703 Citizens Building

West Palm Beach, Florida

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INDEX TO APPENDIX

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APPENDIX

On the 10th day of November, 1954, Second Amended

Complaint was filed. This instrument omitting the Exhibits

is in the words and figures following, to-wit:

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR PALM BEACH COUNTY. AT LAW

No. 14,377

Jack Rain, d/b/a

Jack Rapin Farms, Plaintiff,

v.

Laxe Wortn Drainace District, a general drainage

district, Defendant.

Second Amended Complaint

Comes Now the plaintiff, by his undersigned attorneys,

and sues the defendant, and says:

First Count

1. That plaintiff is a resident of Palm Beach County,

Florida, and that defendant is a general drainage district

created under the laws of the State of Florida, Chapter

7996, Acts of 1917, for the primary benefit of the land

owners within said district.

2. That beginning on the 11th day of August, 1953, and

continuing at intervals on August 13, 18, 21 and 29th and

September 25, 27 and 30th, plaintiff planted peppers on

a portion of the following described farm lands located in

Palm Beach County, Florida:

Approximately 160 acres more or less,

known as the New Farm, located in the

SE of Section 8, T 46 S. Range 42 Fast.

2a

That on each of said dates a 2% acre block of said farm

lands was planted in peppers, making a total of approxi-

mately 224 acres planted to peppers.

3. That said farm lands are bordered on the East by

Canal #E-2, which runs in a North-South direction, and

which is maintained and operated by the Lake Worth Dis-

trict as part of its drainage system.

4. That on or about the 10th day of November, 1953,

the Lake Worth Drainage District, in the exercise of a

proprietary or ministerial private function, caused said

canal, bordering the above farm lands to be sprayed by a

highly dangerous chemical herbicide, commonly known as

2, 4-D, in an effort to control the Hyacinth growth along

said canal. That said herbicide 2, 4-D, was carried by

wind drift upon pepper plants of plaintiff and also con-

taminated the water in the canal which flowed through the

irrigation ditches traversing the said farm lands and which

was being pumped into and onto said farm lands by the

plaintiff.

5. That pepper plants are particularly susceptible to

2, 4-D, which stimulates abnormal growth by distorting

the natural balance of growth processes.

6. That the Defendant knew, or should have known by

the exercise of ordinary care and diligence, that said

spraying would cause damage to the plaintiff’s crop of

peppers.

7. That no notice was given by said District of its

spraying operations, on or about the date alleged and

plaintiff had no knowledge thereof until after the dam-

age was done.

8 That by reason of and as a direct result of defend-

ant’s carelessly and negligently spraying said germicide

in close proximity to plaintiff’s growing crop and allow-

ing it to drift over and upon plaintiff’s pepper plants, and

to contaminate the water of said canal, which plaintiff was

3a

using for irrigation as alleged, plaintiff’s pepper crop was

greatly retarded in maturity, and otherwise damaged. A

bill of particulars of said damage is attached to plaintiff's

original complaint and is incorporated herein.

9. That as a condition precedent to the formation of the

Lake Worth Drainage District the owners of lands therein

obligated and bound said lands to pay the expenses of

maintaining the improvements, and the damages herein

sustained by the plaintiff are a direct result of maintain-

ing the improvements.

Wuenrerore, plaintiff sues defendant for the sum of

Fifty Thousand ($50,000.00) Dollars, together with interest

and costs of this action.

Seconp Count

The plaintiff re-alleges Paragraphs 1, 2 and 3 of the

First Count of the Second Amended Complaint.

4. That on or about the 10th day of November, 1953,

the Lake Worth Drainage District, as a part of its minis-

terial and proprietary duties in maintaining said district,

and, in particular, said canal, attempted to clear the canal

of obstruction caused by excessive hyacinth growth, and

in so doing trespassed upon the pepper crop of the plain-

tiff by spraying a highly dangerous herbicide over and

upon said pepper crop.

5. That as a direct result of said trespassing, plaintiff's

pepper crop was greatly damaged. A bill of particulars of

special damages suffered by the plaintiff is attached to

the plaintiff’s original complaint and is incorporated

herein.

6. That as a condition precedent to the formation of the

Lake Worth Drainage District the owners of lands therein

obligated and bound said lands to pay the expenses of

maintaining the improvements, and the damages herein

4a

sustained by the plaintiff are a direct result of maintain-

ing the improvements.

Wuererorg, plaintiff sues defendant for the sum of

Fifty Thousand ($50,000.00) Dollars, together with inter-

est and costs of this action.

Tuirp Count

The plaintiff re-alleges Paragraphs 1, 2 and 3 of the

First Count of the Second Amended Complaint.

4. That on or about the 10th day of November, 1953,

the defendant in maintaining said ditch did damage and

take plaintiff’s property, to-wit: his pepper crop, by spray-

ing the same with a highly dangerous chemical herbicide

known as 2, 4-D, and by contaminating the water then being

used to sprinkle and irrigate said crop with said herbicide.

5. That the total market value of the plaintiff’s prop-

erty so taken is $38,953.78, a detail schedule of which is

attached to plaintiff’s original complaint and incorpo-

rated herein.

6. That the defendant has damaged and taken the plain-

tiff’s property without just compensation contrary to Sec-

tion 12 of the Declaration of Rights of the Constitution

of the State of Florida and contrary to the Fourteenth

Amendment, Section 1 of the Constitution of the United

States.

7. That as a condition precedent to the formation of

the Lake Worth Drainage District the owners of lands

therein obligated and bound said lands to pay the expenses

of maintaining the improvements, and the damages herein

sustained by the plaintiff are a direct result of maintain-

ing the improvements.

5a

Wuererore plaintiff sues defendant for the sum of

Fifty Thousand ($50,000.00) Dollars, together with inter-

est and costs of this action.

Warwick, Pavt anp Warwick

Joun A. Pau

703 Citizens Building

West Palm Beach, Florida

Attorneys for Plaintiff

On the 17th day of December, 1954, the Court entered

Order and Final Judgment which was filed same date at

3:15 P. M. and duly recorded in Minutes Cireuit Court

No. 66 at Page 352 in the words and figures following, to-

wit:

Order and Final Judgment

This cause was duly presented by counsel for the parties.

Ir Is Orverep that the defendant’s Motion to Dismiss

the Second Amended Complaint be granted; that the Com-

plaint be dismissed with prejudice; that judgment be and

same is hereby entered for the defendant against the

plaintiff, with costs taxed against the plaintiff.

Copy furnished counsel.

Done anv Orperep, this December 17, A. D. 1954.

C. E. Camurmewortru

Circuit Judge

And thereafter on the Ist day of July, 1955, the Su-

preme Court of Florida rendered and filed its Opinion,

which Opinion is in words and figures as follows, to-wit:

6a

IN THE SUPREME COURT OF FLORIDA

JUNE TERM, A. D. 1955

DIVISION B.

Opinion filed July 1, 1955

An Appeal from the Cireuit Court for Palm Beach County,

C. E. Chillingworth, Judge

Tuomas, J.

The plaintiff, appellant here, filed a complaint against

the Lake Worth Drainage District, appellee, alleging that

he had planted peppers on land adjoining a canal main-

tained by the district and that the district in order to

destroy the hyacinths in the canal caused the canal to be

sprayed with a chemical herbicide which was blown upon

the plaintiff’s plants and which contaminated the water

that the plaintiff used for irrigation of his farm, As a re-

sult of the operation the plaintiff's crop was retarded

and, therefore, damaged, so it was charged. There were

three counts in the complaint. One was based on negli-

gence, one on trespass, and one on the unlawful taking of

property.

It was averred that as a condition precedent to the

formation of the district, the landowners in the district

were obligated to pay the expenses of maintaining the im-

provements, Section 298.01, Florida Statutes 1953, and

F.S.A., and that the damage to the plaintiff was the result

of fulfilling the obligation. Judgment was asked for the

amount of the loss.

The cireut judge dismissed the complaint and entered

judgment against the plaintiff and he appealed.

The appellant prefaces his argument by citing Section

12 of the Declaration of Rights of the Florida Constitu-

tion which vouchsafes to every person that he shall not

be deprived of his property without just compensation and

Section 4 of the Declaration of Rights providing that the

=

ia

courts shall be open ‘‘so that every person for any injury

done him in his lands, [or] goods, * * * shall have remedy,

by due course of law * * *.’’ But he is frank to say that

he is faced with Seefion 22 of Article III of the Florida

Constitution, stipulatin; that ‘‘Provision may be made by

general law for bringing suit against the State as to all

liabilities now existing or hereafter originating,’’ with the

lack of such legislation, and with the decision in Arundel

Corporation, et al v. Griffin, et al., 89 Fla. 128, 103 So. 422.

We are met with the pivotal question whether or not a

drainage district, such as appellee, may be sued in tort. It

seems that no statute of this State authorizes an action like

the one here involved. The appellant insists that the

guarantees of the Constitution are self-operative, while

the appellee contends that no right of action ean be im-

plied.

To support his position the appellant cites authorities

of other states holding, in effect, that the Constitutional

inhibition against the unlawful taking of property for pub-

lic use is not dependent upon legislative sanction because

the legislature cannot abrogate a constitutional right,

Tomasek v. State, 196 Or. 120, 248 Pac. 2d 793: that “ ‘a

constitutional provision’ ’’ that private property shall not

be taken for public use without just compensation ‘‘ ‘shall

never be construed as dependent for its efficacy and op-

eration upon the legislative will.’ ’’ Chick Springs Water

Co, v. State Highway Department, 159 S.C. 481, 157 S. E.

842. Swift € Company v. City of Newport News, 105 Va.

108, 52 S. E. 821.

He also cites decisions from the supreme courts of Vir-

ginia, Nebraska and Georgia, but the constitution of each

of these states contains express prohibition against ‘‘dam-

age’’ to private property, without just compensation, a

protection that does not, in terms, appear in the Constitu-

tion of Florida. Section 12, Declaration of Rights, supra.

8a

We prefer the logic of the decisions that districts such

as appellee are not responsible in tort actions in the ab-

sence of legislative authority for bringing suit against

them and, by adopting the reasoning of the courts that

rendered such decisions, we think a determination of the

present controversy will harmonize with our opinion in

Arundel Corporation, et al, v. Griffin, 89 Fla. 128, 103 So

422.

In Todd v. Kaw Valley Drainage Dist., Wyandotte

County, 109 Kan. 754, 201 Pac. 1096, the court was deal-

ing with an action by a workman against a drainage dis-

trict, for injury alleged to have been suffered as a result

of the negligence of his foreman while they were engaged

in clearing the channel of a river. The organization of the

district and the purpose of the organization were not un-

like the creation and purpose of Lake Worth Drainage

District. The court ruled point-blank that the district was

a governmental agency upon which no liability for tort

rested ‘‘there being no specific statutory provision to mod-

ify the general rule [of non-liability].”’

Of like tenor was the decision of the Supreme Court of

Arkansas in Board of Improvement of Sewer District No.

2 of Ft. Smith v. Morland, 94 Ark, 380, 127 S. W. 469. The

sole question was the liability of a sewer district for the

death of a workman, said to have resulted from the negli-

gence of the district, while he was engaged in constructing

a sewer. The court styled such districts governmental

agencies or public quasi corporations which are ‘‘ ‘purely

auxiliaries to the state’’’ with no ‘‘ ‘powers, duties or

liabilities except as conferred expressly by statute.’ ”’

To the same effect is the opinion of the Supreme Court

of Illinois in Elmore v. Drainage Commissioners, 135 Tll.

269, 25 N. E. 1010.

In the case of Arundel Corporation, et al., v. Griffin, et

al., supra, this court was considering an action that had

been brought against a corporation and the Board of Com-

9a

missioners of Everglades Drainage district for damages

averred to have been caused plaintiffs by negligent drain-

age operations. The pivotal questions were whether or

not the Board of Commissioners was subject to suit for

tort, and whether or not the plaintiffs’ lands had been

taken for public purposes without compensation. The

board was termed an agency of the state and a public quasi

corporation and even though the board had been given the

power to sue and be sued it was held that it was not re-

sponsible in tort, the court reasoning that if the State ean-

not be sued without its consent, and a county is not liable

in tort for damages, an action against the board, a state

agency, could not be maintained without legislative au-

thority.

We revert to the decisions upon which the appel-

lant relies to support his contention that his property has

been taken without just compensation. In these cases the

view was expressed that the constitutional guaranty that

one’s property may not be so taken cannot be thwarted by

the lack of legislative authorization. It seems to us that

this point was settled in this state thirty years ago, in the

Arundel case, supra, Aside from the commitment of this

court to the principle that the state or an agency of the

state may not be sued without the state’s consent, the

provision that property shall not be taken does not seem to

us apropos of the fundamental question with which we are

now concerned. Appellant’s crop was not taken by the

state agency, Miller et al. v. City of Palo Alto, 208 Cal. 74,

280 P. 108; it was destroyed and the destruction, if negli-

gent, constituted a tort. And it is the tort for which the

appellee is not under the law responsible because it was

acting in a governmental capacity as a public corporation.

Section 298.02, Florida Statutes 1953, and F.S.A.

The provision of the Declaration of Rights appropriate

to this discussion is the mandate that courts shall be open,

so that every person shall have remedy for injury done

his property. But we cannot find the distinction between

10a

the application of that guaranty to cases where counties,

cities and the Everglades Drainage District are involved

and to a case like this one. If the doors of the court must

now be opened te appellant they should have, by the same

token, been required to be opened in the many cases reach-

ing this court where cities and towns were held not liable

despite the merits of the plaintiff’s claims. Wilford v. City

of Jacksonville Beach, Fla., 79 So. 2d 516.

Another allied question is inherent in this record, that

is the practical problem of collecting. If the appellant

were held to have the constitutional right to proceed and

he obtained a judgment how would he go about collecting

it? The district has the power only to assess against

lands within its boundaries assessments to accomplish an

over-all drainage operation to make the lands within the

whole area cultivable and keep them so. The assessments

for main and subsidiary canals are made against the in-

dividual parcels of lands according to the benefit each

parcel will receive from the project as a whole. Hearings

are conducted so that any property owner aggrieved by

the assessment may be heard. The financing of the im-

provement is based on the total assessment, the obligation

undertaken to construct the project is discharged from

the assessments paid. How could the district be coerced

to pay any judgment obtained in a tort action except on

the theory that by the commission of the tort the lands in

the district were benefited? Campbell et al. v. State ex rel.

Garrett et al., 133 Fla. 638, 183 So. 340. This is so nebulous

as not to warrant further exploration.

We are firm in the view that the appellant cannot prevail.

Affirmed.

Drew, C. J., and Hosson, J., Concur

Tuornat, J., Concurs specially

lla

TxHornat, J., Concurring Specially:

I concur in affirmance for the reason announced by the

concluding paragraph of the main opinion. The General

Drainage District Act, Chapter 298, Florida Statutes, au-

thorizes the levying of taxes for specific purposes stipu-

lated in the Act. These are limited strictly to the improve-

ment and maintenance of the drainage district and the

taxing power of the Board of Supervisors cannot be ex-

ercised for any other purpose—general or special. See

Campbell, et al. v. State, 133 Fla. 638, 183 So. 340. To this

extent it can safely be concluded that it was not contem-

plated by the Legislature that a drainage district organ-

ized under the Act could be compelled to respond in dam-

ages for a tort or forced to levy taxes for this purpose,

I do not agree that a drainage district under Chapter

298, supra, is either a state agency or is entitled to enjoy

the immunities granted to state agencies. This is so pri-

marily because the method of electing the Board of Super-

visors under Sections 298.11 and 298.12, Florida Statutes,

does not meet the requirements of Article III, Section 27,

for selecting State officers. In my view such a district is

more nearly a municipal organization rather than an agency

of the State. See Ronald v. Ryan (Fla. 1946), 26 So. 2d 339.

The case of Arundel Corporation, et al. vy. Griffin, et al., 89

Fla. 128, 103 So. 422, dealt with the Board of Commis.

sioners of the Everglades Drainage District under Chapter

6456, Acts of 1913. This board consisted of five elected

members of the state cabinet who were constitutional state

officers.

For the reason stated above, however, I concur in the

conclusion for affirmance.

On the 11th day of July, 1955, appellant filed in the

Supreme Court of Florida his petition for rehearing in the

words and figures following, to-wit:

12a

Petition for Rehearing

2. The Court in holding the Lake Worth Drainage Dis-

trict to be a State Agency has overlooked or failed to con-

sider that in so holding this brings into effect Article V

Constitution of the United States which provides ‘‘nor

shall private property be taken for public use, without just

compensation’’, and in interpreting the meaning of prop-

erty under the Federal Constitution, damage to property

as alleged here is uniformly held to be within the protec-

tion of the Fifth Amendment, and it is not confined to a

taking in the narrow sense.

U. S. v. Pewee Coal Co. 71 8. Ct. 670, 95 L. Ed. 809.

Pumpelly v. Green Bay and Miss, Canal Co. 13 Wall,

166, 80 U. S. 166, 20 L. Ed. 557.

Coates v. U. S. 93 F. Supp. 637.

3. The Court in its opinion overlooked or failed to con-

sider that in interpreting the meaning of the term ‘‘prop-

erty’’, under the Fifth and Fourteenth Amendments to

the Constitution of the United States, decisions of the

Supreme Court of the United States are paramount and

binding.

U.S. v. Causby, 66 S. Ct., 1062, 90 L. Ed. 1206.

U. S. v. Powelson, 319 U. S. 279, 63 St. Ct. 1064, 87

L. Ed. 1390.

* * * * * * » + * *

On the 16th day of September, 1955, the Supreme Court

of Florida rendered its Opinion on the rehearing granted,

which Opinion is in words and figures as follows, to-wit :

13a

IN THE SUPREME COURT OF FLORIDA

JUNE TERM, A. D. 1955

EN BANC,

Opinion filed September 16, 1955

An Appeal from the Circuit Court for Palm Beach County,

C. E. Chillingworth, Judge

On Rehearing Granted

Per Curiam.

A rehearing having been granted in this cause and the

case having been further considered upon the record and

upon briefs and argument of counsel for the respective

parties; it is thereupon ordered and adjudged by the

Court that the opinion of this Court filed July 1, 1955, be

and it is hereby reaffirmed and adhered to on rehearing.

Drew, C. J., Terrett, THomas, Seprinc, Hopson, Roserts

and TxHorna., JJ., Concur.

Florida Statutes, 1941

Pertinent Sections of the General Drainage Act

298.01 Formation or Drarnace Districr

‘*The board of drainage commissioners of this state,

or majority of the owners, or the owners of a majority

of the acreage of any contiguous body of wet or over-

flowed lands or lands subject to overflow, situate in

one or more counties in this state, may form a drain-

age district for the purpose of having such lands re-

claimed and protected from the effects of water, for

sanitary or agricultural purposes, or when the same

may be conducive to the public health, convenience or

welfare, or of public utility or benefit, by drainage or

otherwise; and for that purpose the said board of

drainage commissioners, or a majority of the owners,

or the owners of a majority of the acreage of said

lands may make and sign a petition, in which shall be

stated the name of the proposed drainage district and

l4a

the number of years the same is to continue; the

boundary line of the proposed drainage district; the

names so far as known, and the last known post office

address of the owners of lands or other property in

said district, together with a general description of

the lands and the approximate number of acres owned

by each; when the name or post office address of the

owner of any of said lands or other property is un-

known this fact shall be set out in said petition; the

petition shall further state that the owners of the lands

within said district, whose names are subscribed to

said petition, are willing to and do obligate and bind

the lands owned by them situated in the proposed

drainage district to pay the tax which may be assessed

against their respective lands to pay the expense of

organizing and of making and maintaining the im-

provements that may be necessary to effect the re-

clamation of said lands, so formed into a drainage dis-

trict, and to drain and protect the same from the

effects of water; the petition shall contain a prayer,

asking that the lands described therein be declared a

drainage district under provisions of this chapter;

the petition may be signed by the board of drainage

commissioners, or by a majority of the owners, or the

owners of a majority of the acreage of said lands, or

same may be signed by both commissioners and owners

of lands. After the petition has been so signed, the

same shall be filed in the office of the clerk of the

cireuit court of the county in which such lands, or the

greater part thereof, are situate.”’

998.02 Notice or AppiicaTion To Form Dratnace District

‘‘Immediately after the petition shall have been filed,

the clerk in whose office the same has been filed, shall

give notice by causing publication to be made once a

week for four consecutive weeks in some newspaper

published in each county in which lands and other

property described in the petition are situate, and

said notice shall be substantially in the following form:

Notice of Application to Form a Drainage District

Notice is hereby given to all persons interested in

the following described lands in ............ county,

ES

lia

Florida, viz.: (Here describe the property as set out

i Oe SND od ccs eed that a petition

asking that the foregoing lands be formed into drain-

age district under chapter 298, of the Florida Stat-

utes, has been filed in this office, and that the fore-

going lands will be affected by the formation of said

drainage district and rendered liable to taxation for

the purpose of paying the expenses of organization,

and making and maintaining the improvements that

may be necessary to affect the reclamation of the lands

included in such district, and you and each of you are

hereby notified to appear on the first rule day occur-

ring not less than twenty days after this notice has

been published for four weeks as required by said

chapter, at the office of the clerk of the cireuit court of

inn alleathes county, and show cause, if any there be, why

said drainage district, as set forth in said petition,

shall not be organized as a publie corporation of the

State of Florida.

Date of first publication ................ ms aa

ae er Mies in Clerk of the Cireuit Court of ......

County, Florida.

The certificates of the clerk or the affidavit of an-

other, with a copy of said notice affixed, showing that

said notice has been published as required by this

chapter, shall be sufficient evidence of such fact.

The cireuit court of the county in which the petition

has been filed shall thereafter maintain and have origi-

nal and exclusive jurisdiction, coextensive with the

boundaries and limits of said district, without regard

to county lines, for all purposes of this chapter.”’

298.03 Ossections To Formation or Disrricr; Harta:

Decree Incorporatinc District Ficep; Decrer Fitep

1x Counties AFFECTED

‘‘Any owner of lands in the proposed district, who

may not have signed the petition, may appear, on or

before the rule day stated in the notice, and advocate

or resist the organization and incorporation of said

drainage district; if he shali desire to resist the es-

tablishment of the district, he shall file his objection

in writing, stating therein his reasons why the said

drainage district should not be organized and incor-

l6a

porated or why his lands or any part thereof should

not be included therein, or he may deny the state-

ments in said petition. Such objections, if any there

be, shall be heard by the court either in term time or

vacation in a summary manner, without unnecessary

delay, on a day to be named by the court or judge

thereof, upon application of the petitioners or any of

those signing the said petition. Upon the hearing,

which may be adjourned, from time to time, for good

cause shown, of the said objections, if any have been

filed, if the court shall be of the opinion that the

establishment of the said drainage district and the im-

provements to be made thereunder will be for the

advantage of the owners of the real property therein

or that the same would be in the interest of the

public health, convenience or welfare, he shall over-

rule said objections; and, in case all such objections

are overruled, or in case no such objections have been

filed, the court thereupon shall, by its order duly

entered of record, declare and decree said drainage

district a public corporation of this state, for a term

not exceeding the time mentioned in said petition;

provided, that no drainage district shall be estab-

lished or consolidated under any provisions of this

chapter until there shall have been first obtained the

written approval or consent of the owner or owners

of a majority in acreage of the lands within said dis-

trict. If the court finds that the lands set out in said

petition should not be incorporated into a drainage

district, it shall dismiss said proceedings and adjudge

the costs against the said petitioners in proportion

to the acreage represented by each. Any person having

signed the petition shall have no right to have such

proceedings dismissed as to him without the written

consent of the other owners of a majority in acreage

who signed said petition. The petition may be amended

as any other pleading. Immediately after the said

district has been declared a corporation by the court,

the clerk thereof shall transmit tc the secretary of

state a certified copy of the findings and decree of

the court incorporating said district, and the same

shall be filed in the office of the secretary of state.

A copy of said finding and decree, together with a

plat of the district, shall also be filed in the office of

TREO EN ES

l7a

the clerk of the circuit court in each of the counties

having land in said district, where the same shall

become a permanent record, and each such clerk shall

receive a fee of one dollar for filing and preserving

the same.’’

298.23 Supervisors Given Power To Take LAnp ror Rieut

or Ways, erc.; Payment, ere.

“The board of supervisors of drainage districts or-

ganized under this chapter shall not have the right

to enter upon, or appropriate, any land for right of

ways, holding basins or other works of the districts,

until the prices awarded to the owners of such land

shall have been paid to such owners, or into the hands

of the clerks of the circuit courts organizing such

districts for the use of such owners; and if the sums

awarded be not so paid within five years from the

date of filing the commissioner’s reports, all pro-

ceedings as to the taking of such property for right

of ways, holding basins and other wor Ss, not so paid

for, shall abate at the cost of said district. Whenever

any land is acquired by any district under the provi-

sions of this chapter and the price of such roperty

has been paid the owner by the district, the title, use,

possession and enjoyment of such property shall pass

from the owner and be vested in the district, and

subject to its use, profit, employment and final dis-

posit.on. The price awarded for all lands acquired by

any district for right of ways, holding basins, or other

works, and the amount of damage assessed by the

board of commissioners and confirmed by the court

to any tract or parcel of land or other property in the

district, shall be paid in cash to the owner thereof or

to the clerk of the court for the use of such owner,

and that portion of any tract or parcel of land not

taken for use of the district shall be assessed for the

benefits accruing in accordance with the provisions

in this chapter.’’

298.29 Levy or Taxes; CoLLEcTION oF Taxes; Supervisors

May Borrow Money anp Issue NecotiaBLe Papers

“The board of supervisors of any drainage district

organized under the provisions of this chapter shall, as

18a

soon as they have organized, as provided under Sec.

298.14, levy a uniform tax, of not exceeding fifty cents

per acre upon each acre of land within such drainage

district, as defined in the petition and decree incorpo-

rating said district; to be used for the purpose of pay-

ing expenses incurred, or to be incurred, in organiz-

ing said district, making surveys of the same and

assessing benefits and damages, and to pay other ex-

penses necessarily incurred, as may be estimated by

said board and chief engineer; before said board

may, by provisions of this chapter, provide funds to

pay the total costs of works and improvements of the

district. In case the boundary lines of the district be

extended, under the provisions of this chapter, so as

to include lands not described and contained in the

petition, the same uniform assessment shall be made

on such other lands as soon as same shall have been

annexed and included in the district. Such shall be due

and payable as soon as assessed and become delin-

quent ninety days thereafter. It shall become a lien

upon the land against which it is assessed from the

date of assessment, and shall be collected in the same

manner as the annual installment of tax. In case the

sum received for such assessment exceed the total

cost of items for which the same has been levied the

surplus shall be placed in the general fund of the dis-

trict and used to pay cost of construction; provided,

that if the corporation of the district be dissolved,

as provided in this chapter, the amount of surplus, if

there be any, shall be prorated and refunded to the

landowners paying such assessment; * * *”’

JAN 12 1954

IN THE

Supreme Court of the United States

October TERM, 1955

No. 570

JacK RaBin, doing business as Jack RABIN FaRMs,

Petitioner,

Vv.

Lake Wortn Drainage District, a general drainage

district, Respondent.

BRIEF OF RESPONDENT, LAKE WORTH DRAIN-

AGE DISTRICT, IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

—

Hat H. McCacuren

811 Citizens Building

West Palm Beach, Florida

Counsel for Respondent

Of Counsel:

C. D. BLackweth

802 Citizens Building

West Palm Beach, Florida

— —————————— ES

Press or Braow 8. Apams, Wasumreron, D. C.

INDEX

Page

pomemeennes E Wn O i i os a eas 1

PRIN i cad eiv ens peida\ckhin kao cumeeel 2

Point One: The Petition Presents No Federal

WD Sere sh canatnicbaunkoiblin eo. 2

Point Two: Petitioner Does Not Show a Case Where

Any of His Property Was Taken by the District.. 3

Point Three: No Federal Question Was Presented

to the Trial Court in the Pleadings of Petitioner.. 6

Point Four: The State Cases Cited by Petitioner

Have No Bearing on the Point .................. 8

a cae EE OE ER TIEN | CEP MOE REET Ds 9

TABLE OF CASES

American Surety Co. v. Baldwin, 287 U. S. 156, 53 S.

Ct. 98, 77 L. Ed. 231, 86 A-.L.R. 298 ..............

Hanford v. Davies, 163 U. S. 273, 16 S. Ct. 1051, 41 L.

WO MOE S Sa Nicks 6 oi40s Man FSR Wie akan eet se 8

Hull v. Burr, 234 U. S. 712, 34 S. Ct. 892, 58 L. Ed. 15577

(Adv. Sheet So. Rep. Oct. 20, 1955) .............. 3,6

PE heh wa neon sSRASEEONL RS ots uaa sux deeke 6

TEXTS

Hughes Federal Practice, Volume 1, Page 400, Para-

SE Es 2 kines Wi nade aaitnw cubes voce cekac 7

IN THE

Supreme Court of the United States

OcToBER TERM, 1955

No. 570

Jack RaBIn, doing business as Jack RaBIn Farms,

Petitioner,

V.

Lake Wortn Drainage District, a general drainage

district, Respondent.

BRIEF OF RESPONDENT, LAKE WORTH DRAIN-

AGE DISTRICT, IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioner filed a complaint against respondent,

The Lake Worth Drainage District. The theory of

the complaint is that the District, in order to clean

hyacinths from one of its canals, caused the hyacinths

to be sprayed with a herbicide; that the spraying was

so negligently done that the herbicide was blown on

petitioner’s pepper crop which was thereby injured.

2

Petitioner does not present a case where the injury

arose because of any direct positive act of the District

to purposely injure the pepper crop, but rather a case

of an unintentional injury which resulted from an

act of its servants in cleaning its canal in a negligent

and improper manner, an act which in itself was

lawful to do and which was their duty to do. The

complaint against the District is not because of the

fact that it used the herbicide to clean the canals but

rather because of the manner in which the herbicide

was applied; that is, the damage resulted, as alleged,

‘“‘by reason * * * defendant’s carelessly and negli-

gently spraying said germicide in close proximity to

plaintiff’s growing crop and allowing it to drift over

and upon plaintiff’s pepper plants.”’

ARGUMENT

POINT ONE

THE PETITION PRESENTS NO FEDERAL QUESTION

Petitioner sues the respondent, District, on account

of a simple act of negligence of its employees. The

District in having its canals cleaned was not com-

mitting a wrong per se. It was not only the District’s

right, but its duty to clean its canals as a part of its

maintenance work. The District was required by law

to maintain its canals. If its servants in cleaning the

canal for the District should do so in such a careless

and negligent manner as to injure near-by property,

the wrong is that of the servant and not that of the

District. If the District were a private corporation,

it could be held liable for the negligence of its servant

under the doctrine of respondeat superior, but that

doctrine does not apply where the master is a state

agency in the performance of a governmental function.

3

The Supreme Court of Florida in its opinion 82 So.

(2) 353 (Adv. Sheet So. Rep. Oct. 20, 1955,

Petitioner’s App. 6a) holds that the respondent,

District, was acting in a governmental capacity as

a public corporation and could not be sued for the tort

as presented by petitioner’s complaint. The case

presented is one simply where petitioner seeks to visit

upon the District. a public corporation, in the

performance of its governmental function a charge of

negligence committed by its servants. In other words,

petitioner seeks to hold the District liable, not for its

own act, but for the negligent act of its servants under

the doctrine of respondeat superior. In such ease the

District is not liable on the same theory that a

municipality is held not to be responsible for the

negligence of its policemen, jailors, firemen and other

agents performing governmental duties.

See Hopkins v. Clemson Agricultural College,

22 U. S. 636; 31 S. Ct. 654; 55 L. Ed. 80.

The Supreme Court of Florida does not hold that

respondent, District, could not be sued in any case,

but its ruling of immunity goes only to the case

presented by petitioner. If petitioner had presented

a case where the District had taken petitioner’s

property for a public purpose without due process,

unquestionably the Court would have held that the

District was not immune from suit.

POINT TWO

PETITIONER DOES NOT SHOW A CASE WHERE ANY OF HIS

PROPERTY WAS TAKEN BY THE DISTRICT

The case of State Road Department v. Tharp, 1 So.

(2) 868, 146 Fla. 745, cited by petitioner (p. 8) clearly

illustrates this point. It presents this situation.

4

Tharp had a water mill which he had owned and

operated as a grist mill, a saw mill and shingle mill

for many years. When the water left the mill it

flowed through a swamp area in five channels. The

State Road Department erected a bridge and fill west

of the mill. The fill completely obstructed four of the

five channels and thereby raised the elevation of the

water in the mill race at least three feet, reducing the

capacity of the mill fifty percent. The Supreme Court

of Florida held that the state agency could not

deliberately trespass upon and destroy Tharp’s

property. Thus, Tharp’s property was clearly taken

by a state agency, which taking was deliberate and

intentional. The damage flowed directly and proxi-

mately from the act of the state agency and not merely

from negligence of a servant committed without the

intention, knowledge or consent of the state agency,

as is the case now presented by petitioner. In other

words, it was an act of the state agency itself, as

distinct from a mere act of the servant himself done

without the knowledge and consent of the state agency.

Petitioner, however, presents no such case as the

Tharp case. There was no intent on the part of

respondent, District, to injure petitioner’s pepper

crop, and the injury did not flow naturally and

proximately from the District’s order to clean the

- eanal. There was no direct, positive, active and

intentional injury so as to stamp the taking as that of

the state agency itself as in the Tharp case; but, on

the contrary, petitioner presents a case only where the

District’s servants committed an unauthorized act of

negligence. If the District’s servant in operating one

of its trucks had operated it so negligently and

carelessly as to run it into and wreck petitioner’s

5

automobile, could it be said that the District was guilty

of taking petitioner’s automobile for a public purpose ?

And in such case the District could not be held liable

for the destruction of the automobile as could a private

corporation under the doctrine of respondeat superior.

If there were a taking in such case, it would be the

servant who did the taking, and undoubtedly the

servant could be made to respond in damages.

Although the servant would be driving the truck under

orders of the District, he would not have orders to

drive its truck into petitioner’s automobile; hence, the

negligent act of the servant would not be the act of

the District. How could it be said, then, in such case,

that a state agency is liable for taking the automobile

for a public purpose because of the unauthorized act

of its servant? This hypothetical case is clearly

illustrative of petitioner’s ease in seeking to hold the

District liable for the unauthorized acts of its servants.

The District authorized its servants to clean the ditches

but it did not authorize them to injure petitioner’s

property, and, as for that matter, it is not shown that

the District directed the manner of cleaning the canal

by the use of the herbicide.

All the cases presented by petitioner holding that

there is an unlawful taking are cases where the act

causing the injury was done under the direct authority

of the state agency ; and we find no case holding that a

state agency is guilty of taking private property where

the private property was injured solely by the

negligence of a servant when the negligence is the

unauthorized act of the servant and committed by him

without the knowledge, consent or authority of the

state agency, as is the case presented by petitioner. In

other words, the injury must naturally and proximately

6

flow from the act which the state agency ordered and

directed, and, if the injury does not naturally and

proximately flow from that act itself but naturally

and proximately flows only from the negligence of the

servant in performing the act, then the injury results

only from the negligence of the servant and does not

result from the act ordered by the state agency, and

the state agency would not be held liable, because there

would be no taking by the state agency.

POINT THREE

NO FEDERAL QUESTION WAS PRESENTED TO THE TRIAL

COURT IN THE PLEADINGS OF PETITIONER

True, paragraph 6 of the third count of petitioner’s

complaint alleges thai defendant has damaged and

taken plaintiff’s property without just compensation

contrary to Section 12 of the Declaration of Rights of

the Constitution of the State of Florida and contrary

to the Fourteenth Amendment, Section 1, of the

Constitution of the United States; but this is but a

conclusion of the pleader. The complaint does not

show facts from which the Court could say that there

was a taking; and the Supreme Court of Florida

construed it as failing to show a taking, holding that

‘‘ Appellant’s crop was not taken by the state agency”’

(82 So. (2) 353, Adv. Sheet Southern Reporter,

October 20, 1955. Petitioner’s Appendix 6a). If

the Court construed the pleading as failing to show a

taking, that ruling presents nothing but a rule of local

pleading not subject to review by a Federal Court.

See Washington v. Miller, 235 U. S. 422; 35S. Ct.

119; 59 L. Ed. 295.

It is only in the third count of petitioner’s complaint

that he makes any pretense of presenting or attempts

7

to present a ‘‘federal question’’, and that third count

is so vague, indefinite and so lacking in essential

averments that no court can read it and say that a

‘federal question’? is involved in petitioner’s case ;

hence, the trial court dismissed it and the Supreme

Court ignored the third count in its opinion.

(Respondent, District’s motion to dismiss presented

to the trial court is not shown by petitioner; hence this

Court cannot determine the grounds of dismissal. )

Petitioner’s complaint is wholly insufficient as a

pleading to raise a ‘‘federal question”’.

The rule of pleading in such ease is clearly stated

and sustained by authorities cited in Hughes Federal

Practice, Volume 1, page 400, paragraph 543, as

follows:

“The question whether a party claims a right

under the Constitution or laws of the United

States is to be ascertained by the legal construction

of his own allegations. To present a ‘federal

question’, the facts averred must show clearly

and distinctly that the suit arises under some

federal law; that is to say, that a federal question

does arise must appear from the plaintiff’s state-

ment of facts in legal and logical form, such as is

required by good pleading, showing the plaintiff’s

cause of action, without regard to what may be

the contentions or claims of the defendant, and

such facts must be stated as to enable the court

to draw the legal conclusions and determine the

question of jurisdiction in the affirmative.”

And see the ease of Hull v. Burr, 234 U. S. 712; 34

S. Ct. 892 ; 58 L. Ed. 1557, where the rule is thus stated:

“* * * The rule is firmly established that a

suit does not so arise unless it really and

8

substantially involves a dispute or controversy

respecting the validity, construction, or effect of

some law of the United States, upon the deter-

mination of which the result depends. And this

must appear not by mere inference, but by

distinct averments according to the rules ef good

pleading; not that matters of law must be pleaded

as such, but that the essential facts averred must

show, not as a matter of mere inference or argu-

ment, but clearly and distinctly, that the suit

arises under some Federal law.”

See also the case of St. Joseph & Grand Island R.

Co. v. R. M. Steel, 167 U. S. 659; 17 S. Ct. 925; 42

L. Ed. 315, where it is said:

“Not every mere allegation of the existence of

@ federal question in a controversy will suffice for

that purpose. There must be a real substantive

question, on which the case may be made to turn.

Nor can jurisdiction be inferred argumentatively

from the averments in the pleadings, but the

averments should be positive. Hanford v. Davies,

163 U. S. 273, 279 [16 S. Ct. 1051, 41 L. Ed. 157).”

Raising a ‘federal question” for first time in

petition for rehearing wili not suffice.

American Surety Co. v. Baldwin, 287 U. S. 156;

53 S. Ct. 98; 77 L. Ed. 231; 86 A.L.R. 298.

POINT FOUR

THE STATE CASES CITED BY PETITIONER HAVE NO BEARING

ON THE POINT

Petitioner cites cases from other states. He seems

to present these to sustain the position that the opinion

of the Supreme Court of Florida is not supported by

the weight of authority. These cases do not present

any Federal question nor are they cited in support of

9

any Federal question but merely in criticism of the

wisdom and soundness of the opinion of the Supreme

Court of Florida. Absent any Federal question, the

Supreme Court of the United States is not concerned

with the soundness or wisdom of the decision of the

Supreme Court of Florida. Absent any Federal

question the decision of the Supreme Court of Florida

is final without regard to the decisions of other states.

It is the law of Florida.

CCNCLUSION

Respondent concludes that petitioner presents no

Federal question, does not show a taking of his

property for any purpose, and no reason is shown for

reviewing the decisions of the state courts of Florida.

Respectfully submitted,

Hau H. McCacHren

811 Citizens Building

West Palm Beach, Florida

Counsel for Respondent

Of Counsel:

C. D. BLACKWELL

802 Citizens Building

West Palm Beach, Florida