My thought is that Chapter 10,145 is unconstitutional and void, and that consequently the proceedings had under *Page 652 it could not be validated by the later act. This matter of special taxation can be carried too far, and I think this act is proof of it. There are limits beyond which the Constitution will not permit the legislature to go. It may delegate the taxing power to public or quasi-public corporations or bodies politic for public purposes, such as municipalities, counties or special improvement districts, but it cannot delegate such power to a mere private individual or group of private individuals, or to mere private corporations. Cooley on Taxation, 4th Ed., Secs. 74, 75, 78; 12 C. J. 842; State ex rel. v. Green, 116 So. R. 66.
This act in section 1, provides that: "Whenever the owner orowners of two thirds of the property abutting on any public road, or any continuous portion thereof, shall present to the board of county commissioners of such county a petition duly signed by them asking that such public road be paved, graded and curbed, or paved, graded or curbed, then it shall be theduty of such board of county commissioners to grant the saidpetition and order the said public road or portion thereof to be paved, graded and curbed, or paved, graded or curbed, as thepetitioners may request; the determination of said board as to the sufficiency of the petition shall be final and conclusive. After the improvement is completed the entire costs thereof shall be assessed against the abutting property * * * in proportion to the frontage of such public road."
There is not a word here as to whether the public interest requires the improvement, nor is a single cent of the cost to be borne by the public in any event. The work is to be financed by the issuance of paving certificates which shall constitute a lien upon the land of all abutting owners. The county is in no way liable. It is a scheme by which, not two-thirds of theowners, but the owner or *Page 653 owners of two-thirds of the abutting property, if they wish it, can under the form of law, compel the other abutting owners to pay for putting down a pavement in front of their property whether they need it or not, or whether they want it or not; and although perchance it may be more for the general public benefit than their own, they must pay the entire cost, or lose their land; and although, perchance, the improvement is not called for by the public need at all, they are compelled by a public law to put it in at the behest of the owners of two-thirds of the frontage. Under this statute, one or two men, owning two-thirds of the abutting property, can compel fifty men, owning the other one-third, to do their bidding and pay for paving a road in front of their property against their will and possibly against their interests, even though there be no public need for such paving. For the plain and obvious meaning of the statute is that if the petition shows the very few things required by the statute and is signed by the owner or owners of two-thirds of the abutting property, it becomes the legal duty of the county board to grant the petition, and order the work done, and issue the paving certificates to pay for it. This duty is merely ministerial, and, if the act be valid, could be compelled by mandamus, for the statute itself prescribes what the petition shall contain. This is then, a delegation to individuals of the legislative and taxing powers.
This statute is to my mind also a clear invasion of those rights of property which are guaranteed by the declaration of rights contained in our state Constitution, and in the 14th amendment to the federal Constitution. Under the act, the special district is carved out by the petitioners, not by the legislature, nor the county board. The character of the grading, paving, and curbing, and hence the cost, is dictated by the petitioners; the county board cannot alter it. The total cost, though the road is public, *Page 654 must be paid by the abutting owners, upon the sole basis of front footage. No matter how great the general public interest, the abutting owners must pay the entire cost of an improvement dictated by the private individual, or individuals, owning two-thirds of the abutting property, and that, too, without any preliminary hearing on the question of public need or private benefits. Thus the legislature does not create the special assessment district (for that is what it is); nor put any limitation upon the character or cost of the paving, or the amount which may be assessed. This is left to the will or caprice of those petitioners owning two-thirds of the frontage. Is this in keeping with our time-honored claim that ours is a government of laws, and not of men? Is all this cured by reason of the later provision in the act that, after the petition has been granted, and the work done, the owner is given an opportunity to appear before the board and question the "validity" of the paving certificate issued against his property? After the board has had the work done, there is no one who can be made to pay for it but the abutting owners, and if any certificate is held invalid, there is an irretrievable loss to the contractor or the holder of the certificate. In determining the objective, the work having already been done, some one must suffer. Is it at all likely that the county board would under such circumstances pay much attention to the objecting property owner? There is no protection in locking the stable door after the horse has been stolen. And, too, what, under this act does the "validity of the certificate" mean? If the petition describes the road, or the portion of it selected by the petitioners, sets forth the nature of the improvement, and is signed by the owners of two-thirds of the abutting property, and the petition has been granted by the board, the work done, the assessments made, and the notice published and mailed, all as required by the *Page 655 statute, is not the certificate entirely "valid" under the statute? The statute makes no provision whatever for consideration of the questions of public necessity for the paving, or of benefit, or the lack of it, to the abutting owner. In fact, under the statute the county board has no right to consider these questions, and is given no discretion, if the petition is framed in accordance with the statute; nor is the abutting owner given any notice or opportunity to be heard as to the "validity" of the certificate until the work has been done and a debt created under the form of law which he must pay, and he alone, or it goes unpaid, or he loses his land by foreclosure — unless the bare possibility that the board will declare his certificate "invalid" is adequate protection. But, it is said, he may go into the courts for the protection of his rights. The answer is, he has no rights under this statute, and if he goes into the courts it must be upon the ground that the statute, or the procedure authorized by it, is unconstitutional, or has violated his constitutional rights. Should such a statute be upheld by the courts? Is it not dangerous to the right of private property?
It seems to me that a statute dealing with improvements topublic roads should levy some part of the cost upon the public, or should make some provision whereby this can be done, where it is made to appear that the benefit is primarily public and only incidentally private. And if the public is not concerned — if the purpose of the improvement is not in any degree a public purpose, there is no occasion to exercise public authority and the power to tax cannot be invoked. It might be said in reply to this, that this statute deals with improvements to public roads, which is prima facie a public purpose. That is true, but the statute places the entire burden of a public work upon a few individuals, and then not according to the special benefits conferred, and without requiring any showing whatever to be made that *Page 656 any special benefits will be conferred; and all this at the dictation of a group of private individuals, for it is they the petitioners, and they alone, who, exercising legislative power, carve out the district and prescribe the nature of the improvements. The county board is given no discretion or supervision whatever. Such a statute is essentially tyrannical, unjust and, in my opinion, unconstitutional. Browning v. Hooper, 269 U.S. 396, 70 Law Ed. 330; Embree v. K. C. L. B. Road Dist., 240 U.S. 242, 60 L.Ed. 624; Purdy v. Ft. Myers,87 Fla. 428, 100 So. R. 366; Burnett v. Green, 122 So. R. 570; Eubank v. Richmond, 226 U.S. 137, 57 Law Ed. 156; Board of Commissioners v. Abbott (Kan.), 34 Pac. R. 416; 19 C. J. 606; O'Brion v. Wheelock, 184 U.S. 450, 46 Law Ed. 636; Stewart v. Daytona New Smyrna Inlet Dist., 114 So. R. 545; Morton v. Holes (N. Dak.), 115 N.W. 258; A. C. L. Ry. Co. v. Lakeland, 115 So. R. 669, 94 Fla. 386; City of Ft. Myers v. State, 117 So. R. 97, 95 Fla. 704. I realize that this court has held in the Lakeland case, supra, that the legislature may prescribe a plan of assessment of the cost of street improvements made by a municipality whereby the entire cost may be assessed against the abutting property specially benefited, although there may be some benefit accruing to the public, so long as the special and peculiar benefits to the property bearing the burden are substantially proportionate and equal to the assessment laid by the municipal authorities. But there the court was dealing with a responsible political or governmental subdivision or agency, which represented the public interests and exercised a delegated legislative power in selecting the street to be paved, the kind of pavement and the cost thereof. But here the statute vests that power in private individuals, and when this is done (if it can be constitutionally done, which I do not admit) surely the statute should require a preliminary showing before some public authority, of public need and of benefits accruing to the *Page 657 abutting property equal to the burden to be imposed, before allowing the work to be ordered and done and the entire burden impressed as a lien upon the abutting property, whether it is benefited proportionately or otherwise. Especially should this preliminary showing to be required as to a statute which by its terms applies to any public road or any portion thereof outside of municipal boundaries, and which, on its face, might be attempted to be applied to roads in rural sections, where, as we have recently held, the front-foot rule cannot be constitutionally applied. Parrish v. Hillsborough County, decided during the present term.
The case of Embree v. R. C. L. B. Road Dist., 240 U.S. 242,60 L.Ed. 624, has been cited as opposed to these views, but in that case the statute as construed by the court did provide for a preliminary hearing and an opportunity to be heard on the question of benefits before the county court, before the petition for creating the district was granted. In that case, the court, speaking through Justice VAN DE VANTER, said:
*Page 658"As the district was not established by the legislature, but by an exercise of delegated authority, there was no legislative decision that its location, boundaries, and needs were such that the lands therein would be benefited by its creation and what it was intended to accomplish, and, this being so, it was essential to due process of law that the land owners be accorded an opportunity to be heard upon the question whether their lands would be thus benefited. If the statute provided for such a hearing, the decision of the designated, tribunal would be sufficient, unless made fraudulently or in bad faith. Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 167, 174, 175, 41 L.Ed., 369, 391, 394, 17 Sup. Ct. R. 56."
This statute, by its terms, would permit the assessment of the total cost of paving a public road or some portion thereof against abutting rural lands, according to the front foot rule. We have held in the recent case of Parrish v. Hillsborough County that this cannot be done, and that such a statute can only be constitutionally applied to lands that are urban in their nature and character though located beyond municipal limits. This ruling is supported by a strong Pennsylvania case; Seeley v. Pittsburg, 82 Penn. St. 360, 22 Am. R. 760; Elliot on Roads and Streets, 4th Ed., Sec. 672, 688, note 22, and cases cited. The bill in this case does not show with sufficient certainty the nature and character of the lands involved, so as to show the constitutional applicability of the statute in this regard.
This statute undertakes to institute property rule, rather than majority rule, in that it authorizes the owner or owners of two-thirds of the abutting property to determine the bounds of the special district and the character of the improvements, and that, too, without any hearing, and may thus compel a number of owners of small estates abutting the road to submit to the making of the improvements and assessment for the full cost thereof according to their frontage. Is that not a denial of due process and equal protection of the laws, which are guaranteed to every citizen, whether he be rich or poor?
I do not think we need consider the so-called validating act. The legislature cannot by a subsequent act breathe life into a statute which is constitutionally dead; it cannot by two acts do, contrary to the constitution, what it could not do by one; it cannot, by a series of acts, contrive any device which would destroy the constitutional guarantees which protect the fundamental personal and property rights of the citizen. *Page 659
The conclusion seems to be inescapable that by this act the legislature has abdicated its powers of legislation and taxation by delegating to private citizens the authority to select property for taxation and to establish taxing districts. And as to denial of due process, permit me to quote from the opinion of Mr. Justice BUTLER in Browning v. Hooper,supra which is to a large degree applicable to this case: "Here, on the initiation of individuals signing the petition, a special district was carved out to furnish credit and to pay for specified improvements on designated roads wholly within the territory selected. * * * The Legislature did not create the road district, levy the tax nor fix the amount to be raised. * * * There is nothing in the law to guide or limit the action of the signers of the petition in selecting the property to be assessed. Subject to the vote of a district of their own choice, the petitioners' designation is absolute. The commissioners' court has no power to modify or deny; it is bound to grant the petition. * * * It is essential to due process of law that such owners be given notice and opportunity to be heard on that question (of benefits) where, as here, the district was not created by the legislature, and there has been no legislative determination that their property will be benefited by the local improvement. Appellants were denied all opportunity to be heard. No officer or tribunal was empowered by the law of the state to hear them, or to consider and determine whether the road improvements in question would benefit their lands. The act is repugnant to the due process of the 14th amendment."
It seems to me that these principles are in the main applicable here, and that in this case, as in the one quoted from, Chapter 10145 should be held unconstitutional and void. *Page 660
If the subsequent act can be construed as an attempt to validate the assessments, this might, under the rule laid down in Road Imp. District v. Mo. Pac. R. Co., cited in the majority opinion, confirm more irregularities in the method of imposing the assessments, but I do not see how this would reach the root of the matter, for it would not supply the condition precedent to the authority for making the assessments at all, that is, the lawful establishment of the improvement district. If this basic lack of authority could be supplied by a subsequent legislative validating act, which is doubtful, the validating act here in question is not broad enough in its terms to accomplish such purpose.