Opinion
April 8, 1952. Rehearing Denied May 28, 1952.
Appeal from the Circuit Court for Brovard County, Joseph S. White, J.
J.A. Fitzsimmons, Fort Lauderdale, for appellants.
Warren O. Windle, Fort Lauderdale, for appellees.
It appears from the Special Master's report that the Town of Lauderdale by the Sea was incorporated under the General Law in 1927. It was abolished and recreated under Chapter 14184, Sp.Acts of 1929. It was again abolished by Chapter 16531, Sp.Acts of 1933, and its property transferred to the Board of County Commissioners of Broward County as trustees. The present town was created by Chapter 24658, Sp.Acts of 1947 and certain of its Acts were validated by Chapters 26449 and 26450, Sp.Acts of 1949, Ex.Sess. A new charter was granted it by Chapter 27675, Sp. Acts of 1951.
This suit was brought by representatives of those who participated in the creation of the Town. Its purpose was to enjoin the collection of 1948 municipal taxes and to inhibit the issuance of tax deeds based thereon. It is contended that Chapter 16531, Sp.Acts of 1933, abolishing the Town is invalid, that Chapter 24658, Sp. Acts of 1947, recreating the Town is invalid because the title is insufficient and that it failed to provide for creditors, that the referendum attached to said act was invalid and that the 1948 tax roll was invalid because of failure to assess personal property.
The Master found that even if Chapter 24658, creating the Town be invalid, it was sufficient to create a de facto corporation because of the good faith in which the business of the municipality was created, there being a complete absence of fraud or bad faith at any time. The Master also found that the referendum attached to Chapter 24658 was held in substantial compliance with the law and that any minor omissions were cured by Chapter 26449, Acts Extraordinary Session of 1949. The chancellor approved the finding of the Special Master and entered final judgment accordingly.
We think there is ample support in the record for the chancellor's decree. We are convinced that a discussion of Chapter 16531, Acts of 1933, abolishing the Town as created by Chapter 14184, Acts of 1929, has no place here. This phase of the attack was predicated on the fact that notice of the act was not published and that it failed to carry a referendum. These requirements were not in the constitution till the amendment of Section 21, Article III in 1938, F.S.A. Town of San Mateo v. State ex rel. Landis, 117 Fla. 546, 158 So. 112. This and other points raised were before the Court and were settled in Knoll v. Linardy, Fla., 43 So.2d 857.
We are also convinced that appellant has failed to show invalidity in the assessment roll. There is no showing that personal property alleged to have been omitted therefrom was of substantial value or that complainants' assessment was increased by such omission, the warrant attached to the roll was sufficient, no fraud or bad faith in making up the roll has been shown, no substantive irregularities have been shown and minor irregularities were cured by Chapters 26449 and 26450, Acts of the Extraordinary Session of 1949. As to notice of the tax sale, it is admitted that it was published in the paper of a nearby municipality but it was also posted, as the law requires, and did not prejudice any right of the plaintiffs because they were advised of it and paid into the registry of the court a sum sufficient to pay their taxes.
We are also of the opinion that the chancellor correctly refused appellants the right to file a fourth amended bill of complaint. The cause had been litigated to final decree, a large volume of evidence had been taken and the proposed fourth amended bill introduced issues that required reopening the case. This Court is committed to the practice of liberality in amendments of pleadings but under the facts of this case the other well recognized rule of three strikes and out was not arbitrarily invoked.
Affirmed.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, HOBSON and MATHEWS, JJ., concur.
ROBERTS, J., not participating.