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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1956
- **Citation:** 350 U.S. 958

## Text

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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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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

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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

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0342%3A1. Public record. Not legal advice.