In the petition for a rehearing, submitted by the Appellee in this case, it is stated in the first ground that the words employed in the opinion expressing the view that the "entire proceeding of the City of Lakeland under the said Act of the Legislature is invalid, in so far as an attempt to place the entire cost of the expense of paving the street upon the property abutting thereon is involved," embraced the resolution awarding the contract, the resolution providing for the issuing of bonds and other proceedings not attacked or referred to in the bill.
The second ground of the petition avers also that the language embraces the city's proceedings as they relate to and affect other streets not included in the appellant's bill and therefore not attacked as invalid.
The third ground avers that the Court overlooked the case of Walters v. City of Tampa, 88 Fla. 177, 101 So.2d Rep. 227.
It is presumed that counsel understand the elementary principles of the doctrine of "stare decisis" and "resadjudicata." It would, therefore, be a work of supererogation to discuss them here at any length. It may just as well be observed, however, that the doctrine is nothing more than the application of the doctrine of estoppel to court decisions and that the doctrine contemplates only such points as are actuallyinvolved and determined in a case, and not what is said by a judge outside of the record or on points not necessarily involved therein. See Freidman v. Suttle, 10 Ariz. 57, 85 Pac. Rep. 726, 9 L. R. A. (N. S.) 933; Chapman v. State, 104 Cal. 690, 38 Pac. Rep. 457, 43 A. S. R. 158; First Nat. Bank v. Union Trust Co., 158 Mich. 94, 122 N.W. Rep. 547. 133 A. S. R. 362; Ingham *Page 374 v. Wm. P. Harper Son, 71 Wn. 286, 128 Pac. Rep. 675, Ann. Cas. 1914C 528; 7 R. C. L. 1004.
Likewise the doctrine of "res judicata" not only involves the foregoing but also includes identity of the subject matter, identity of the cause of action; identity of persons and parties to the action and identity of the quality in the persons for or against whom the claim is made. See Yulee v. Canova, 11 Fla. 9; Prall v. Prall, 58 Fla. 496, 50 So.2d Rep. 867, 26 L. R. A. (N. S.) 577n; Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377, 50 So.2d Rep. 504.
Now, as neither the "resolution awarding the contract," resolution providing for the issuance of bonds," "other proceedings not attacked or referred to in the bill of complaint" nor "other streets and thoroughfares upon which the assessments were not attacked and which were differently situated from the assessment before the Court" were involved in the litigation, in no sense determined by the decision and, therefore as to such matters, constitute neither stare decisis nor res judicata, it is obvious that the first two grounds of the petition furnish their own reason why the petition should be denied so far as they are concerned.
As for the third and last ground of the petition, that the Court "overlooked the fact that the case of Walters v. City of Tampa, 88 Fla. 177, 101 So.2d Rep. 227, was a case in which the question of the right to assess entire cost was raised as a matter of law, but no question of fact, however, was presented in that particular cage," we have to say that counsel are mistaken both as to the fact and the law.
The case was not only cited in the opinion but discussed and shown to be not inconsistent with the holding in the instant case, the Court saying that: "It was distinctly *Page 375 pointed out by Mr. Justice TERRELL, who wrote the opinion, that it was not contended that the assessment exceeded the benefits to the appellants' lots, or that it was out of proportion to similar assessments for like purposes in the same vicinity, or that it was in any other respect unjust or inequitable."
It might be well to call counsel's attention to the rule by which this Court is controlled in the matter of petitions for rehearing. In the first place, a rehearing is only authorized by rule of the Court and the petition must set forth concisely the particular omission or cause for which thejudgment is supposed to be erroneous and the petition is not part of the record unless so ordered or rehearing granted. See Florida Land Rock Phosphate Co. v. Anderson, 50 Fla. 516, 39 So.2d Rep. 392.
It was also said in that case that the proper function of a petition for a rehearing is to present to the Court some point which it overlooked or failed to consider by reason whereof its judgment is erroneous; that a petition that is practically a joinder of issue with the Court as to the correctness of its conclusions upon points in its decision that were expressly considered and passed upon and that reargues the cause in advance of a permit from the Court for such argument is violative of the rule and will be denied without further consideration. See also Finlayson v. Lipscomb, 15 Fla. 558; Jones v. Fox, 23 Fla. 462, 2 So.2d Rep. 853; Hull v. Burr,58 Fla. 475, 50 So.2d Rep. 754; Da Costa v. Dibble, 45 Fla. 237, 33 So.2d Rep. 466; Malsby v. Gamble, 61 Fla. 327, 54 South. Rep. 766; Stewart. v. Preston, 80 Fla. 479, 86 So.2d Rep. 348; Sauls v. Freeman, 24 Fla. 225, 4 So.2d Rep. 577; Hart v. Stribling, 25 Fla. 453, 6 So.2d Rep. 455; Payne v. Ivey,83 Fla. 436, 93 So.2d Rep. 143.
In the latter case this Court said, speaking through Mr. *Page 376 Justice TAYLOR, that a joining of issue with the Court in the application as to the correctness of its conclusions upon points involved in its decisions that were expressly considered and passed upon is a violation of the rule that will cause a dismissal of the application for a rehearing.
There exists in a petition for a rehearing no ground whatsoever for a reconsideration of the case. There is nothing about the judgment, the decision, or the opinion that calls for any explanation or correction even if the two latter features of an appellate court case can ever be the subject of a petition for a rehearing. It is always the judgment of the Court, not its opinion or decision, which is attacked by a petition for a rehearing. An application for a rehearing cannot be used as a means for obtaining an explanation of the Court's language used in the opinion, nor can a difference of opinion between counsel and the Court on the decision ever be the basis for an application for a rehearing as this Court has often pointed out, not only in the cases cited above but in many others.
It is true that from a juristic standpoint the value of a case as a contribution to judicial authority lies in the Court's decision, not in its opinion. The legal principle underlying a case is often not apparent upon the surface of the opinion or decision and reasoning and requires oftentimes discerning search to distinguish it, but therein lies in part the difference in the ability of lawyers. So that when persons having speculative interests in pending litigation, or even counsel in the case, find difficulty in discovering the legal principle upon which a judgment in a case rests that fact affords no ground for an application for a rehearing, which must rest upon some fact or point involved in the case which the Court omitted from its consideration and which would necessitate the application of a different principle and consequent changing of the judgment. Otherwise an appellate court would be resolved into a mere school *Page 377 of law for instruction of the bar. However flattering to this Court that position may be it could hardly be assumed voluntarily with any becoming grace to ourselves, besides the attitude would in no sense be a judicial one.
The opinion states the questions submitted to and considered by the Court and the general principles of law which the Court took as its guide in determining them. The decision may rest upon faulty reasoning and thereby may exist a difference of opinion between counsel and the Court but it cannot be challenged by way of an application for a rehearing, which must call attention to some fact or point involved in the case which the Court in its opinion omitted to consider and which would necessitate the application of a different principle of law and consequently different judgment.
The judgment of this Court was that the "order sustaining the demurrer and dismissing the bill is reversed with directions to allow the case to proceed in accordance with the view expressed in this opinion." The questions submitted to and considered by the Court, as set forth in the opinion, were presented in a bill in chancery seeking to declare void certain proceedings of the City of Lakeland wherein it assessed against the complainant's lot one half the total cost of paving a certain street. Those questions, raised by the allegations of fact contained in the bill and admitted by the demurrer, were, among others, the following; which were considered by the Court and decided to be sufficient to sustain the bill; first, that the lot of the complainant does not abut upon the improved street nor is it adjoining or contiguous to it; second, that the assessment made by the city against the property along the street improved was for the total cost of the improvement in its entirety, no part of it being borne by the city, but the assessment was made without taking into account or attempting to determine what benefit, if any, accrued to the *Page 378 complainant's property by reason of the improvement; third, that no benefit in fact accrued from the improvement; fourth, that the improvement was an injury and detriment to the property; fifth, that the assessment was made without any consideration of benefits to the public or what portion of the expense the public should bear on account of any benefits to it, but on the contrary the assessment was an arbitrary division of the total cost of the work by the number of lineal feet of the street and the quotient thus obtained divided between the lands on both sides of the street and apportioned to it per front foot, and sixth, that the assessment was out of proportion to other assessments on property in the same vicinity and therefore unjust and inequitable.
These allegations of ultimate fact being admitted by the demurrer the judgment of this Court was that the bill stated sufficient grounds to support the relief sought which was the annulment of the city's proceedings in the matter of the assessing against the particular property described one-half the total cost of paving the street and that the certificate for such cost issued by the city should be declared to have no effect and a cloud upon the complainant's title to the property and that the city should not enforce the payment of the certificate.
The principles of law discussed in the opinion and the reasoning therefrom and the decision that in this State they were applicable to the instant case are not the subject, nor can they be made the basis, of an application for a rehearing, however much the earnest advocacy of counsel and the interests of other municipalities, engaged in similar activities involving the exercise of the taxing power entrusted to them by the State, may endeavor to make it appear that an explanation of the Court's opinion, is needful in the peoples' interest. *Page 379
The opinion called attention to the fact that the statute, under which the proceedings of the City of Lakeland in the matter presented were taken, contemplated that while municipalities might require the payment of all or any part of the cost of any street improvement by levying and collecting special assessments on the abutting, adjoining or contiguous property that "the authorization rests upon the supposition that the property assessed is specially benefited by the improvement;" that special assessments shall be made upon "property specially benefited by the improvement in proportion to the benefits to be derived therefrom, said special benefits to be determined and prorated according to the foot frontage of the respective properties specially benefited by said improvement, or by such other method as the governing body of the municipality may prescribe; that the Legislature of this State should have in its wisdom protected by appropriate legislation the interests of the people of this State from the possible over-zealous activities of "governing bodies" of municipalities in pursuit of that political chimera and economic fantasy called by them "progress," is, if this Court may with propriety say anything at all upon the subject, more to be commended most highly than that the legislation should be frittered away by narrow and technical construction and the benefits of it destroyed by "learned talk" and sophistical reasoning. That Act of the Legislature rests upon elementary principles of taxation discussed by this Court in its opinion, which it now reaffirms.
The Court correctly interpreted the cases of Walters v. City of Tampa, 88 Fla. 177, 101 So.2d Rep. 227 and Anderson v. City of Ocala, 67 Fla. 204, 64 So.2d Rep. 775, and reaffirms the statement that conditions making it lawful for municipalities to require the property abutting upon each side of a street paved by the city to bear the total cost of the work conservatively incurred and at the *Page 380 same time be a just and equitable exercise of the taxing power, may possibly exist but they have not been presented in the instant case nor have as yet come within our observation.
The case of Carr v. City of Kissimmee, 80 Fla. 754, 86 South. Rep. 701, does not in any point nor in any degree conflict with that utterance of this Court nor the cases above cited. It was distinctly stated by Chief Justice BROWNE in the Kissimmee case that two questions only were presented: whether the bill showed that the city had performed all acts required by the statute and that all time had transpired prescribed by it up to the time of filing the lien for the paving, and whether the council in determining the amount that abutting owners should pay for paving adopted a different method from that provided by the statute. The city sought by bill in chancery to enforce its asserted lien. Carr demurred. The city based its claim upon the provisions of a special Act of the Legislature, Chapter 6361, Acts of 1911. The Court held that the bill was without equity and that the demurrer to the bill should have been sustained. In another case, between the same parties, involving the identical subject, the Court distinctly held that the certificate issued by the city and which was the basis of its action against Carr was void and could not be reformed in equity and that a demurrer to the bill should have been sustained. See Carr v. City of Kissimmee, 80 Fla. 759, 86 So.2d Rep. 699.
The language used by Mr. Chief Justice BROWNE in the first opinion, relating to the existence of "various methods of paying for street improvements," etc., was dictum only as the point was not involved in the case nor was the observation in any degree necessary as a postulate to the reasoning of the Court. The Act itself provides for only an assessment of "two-thirds of the cost of such improvement *Page 381 in proportion to the length of such abutting property on such street or alley so improved."
What was said by this Court in its opinion in the instant case concerning the principles of taxation and the exercising of that power delegated to municipalities in the matter of street paving and the authorities cited in support of those doctrines the Court now reaffirms. "The power of taxation is sovereign in character and may be used only to the end that the necessities and reasonable conveniences for the administration of public affairs may be efficiently but economically executed"; that the question of the extent to which property abutting upon a sidewalk or paved street may be said to bespecially benefited by paving the sidewalk or street depends largely upon the property and the use to which it is put and is a fact to be proved as any other fact when it is controverted; that the paving of streets and sidewalks results from the demand which arises for additional conveniences for the public at large and the power to tax for it rests upon the existence of public necessity; that the reasonable cost of the improvement and the measure of its value or benefit which is to be apportioned between the public and the local or abutting property specially benefited, involves the exercise of judgment. It must be determined by municipal authority to what proportion of the reasonable cost the public is benefited and the remainder to be raised by assessments upon the property specially benefited and that if the amount of public benefit to flow from the improvement is so small, disproportionate to the reasonable cost as to be negligible the exercise of the power is obviously not for the public benefit.
The principles upon which is exercised this special phase of the taxing power, involving assessments upon abutting property for local public improvements, form the basis of *Page 382 the Court's decision announced in the opinion they are supported by the authorities cited in the opinion, and are yet alive in this jurisdiction and may be invoked by the people in all cases where they are not observed but are ignored. When the Legislature of this State undertakes, if it ever should, to deprive the people of the benefit of those salutary doctrines a new case will be presented and the validity of such legislation may then be considered.
The explanation made by the Court of the cases of French v. Barber Asphalt Paving Co., 181 U.S. 324, 45 L.Ed. 879, 21 Sup. Ct. Rep. 625, Den ex dem. Murray v Hoboken Land Improv. Co., 18 How. (U.S.) 280, 15 L.Ed. 372; McMullen v. Anderson,95 U.S. 37, 24 L.Ed. 335, and Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616, is correct and requires no further elucidation so far as the matters involved in this case are concerned.
All academic discussion as to the legislative power under the Constitution and policies of other jurisdictions to create local taxing districts for public improvements such as road building, drainage and street paving are a work of supererogation in so far as the law and policy of this jurisdiction is concerned in such matters. When, as above said, the Legislature shall in its wisdom attempt to vest in municipalities the power of compelling private persons to make improvements upon their property, or assess to abutting property on improved or paved streets the total cost of such improvements, whether economically or extravagantly incurred, then such discussions may be appropriate in determining the validity of such legislation.
The rehearing is denied.
WHITFIELD, TERRELL AND BUFORD, J. J., concur.
BROWN, J., concurs specially. *Page 383