Title: City of St. Petersburg v. Thomas G. Earle
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 Material Information
Title: City of St. Petersburg v. Thomas G. Earle
Alternate Title: City of St. Petersburg v. Thomas G. Earle. No. 847, DCA 2d. Jan. 30, 1959,
Physical Description: 7p.
Language: English
Publication Date: Feb. 18, 1959
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 2, Folder 1A ( SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT (Regulatory), Folder 1 ), Item 18
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00050838
Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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Full Text







388 Fla. 109 SOUTHERN REPORTER, 2cl SERIES

Finding no error in the record, we af- against a municipality must be brought in 5. Municipal
firm the lower court on the appeals in each the county in which the municipality is lo-
of these two cases. cated. Provis
municipality

[2] The lower court refused to allow Reversed. impleaded ir
attorney's fees for the attorney for the ap- in al matter
ize an action
pellee. The attorney representing the ap- I. Municipal Corporations e1024 nicipality o
pellee is a law partner of the appellee trus-
tee in this case. Under the record in this An action against a municipality for an situated, sin
case, we do not find error in the refusal injunction and for damages arising from directly or
of the lower court to require payment of the pumping of water from its well field lo- on the part.
appellee's attorney's fees. cated in County of Hillsborough could not common la\
be maintained in Circuit Court of Hills- municipality
The decree of the lower court in each of borough County, where municipality was ply a holding
the instant cases is hereby affirmed. situated in Pinellas County, since an action pality to sue
against a municipality must be brought in
KANNER, C. J., and SHANNON, J., the county in which the municipality is sit- 6. Statutes
concur, uated. The la
be constru

2. Municipal Corporations :)16024 which it is
W
0 sK''E.S' Statute providing that a suit shall be
begun only in the county where the defend-
ant resides, or where the cause of action ac- H
D. McDev
crued, or where the property in litigation is
^ located, did not give plaintiffs a right toburg, for
" CITY OF ST. PETERSBURG, a Municipal bring an action for an injunction and for J. C. Da
SCorporation, Appellant, damages, arising from pumping of water
*. v. from a municipal well field located in the SHAN1
Thomas G. EARLE et al., Appellees. County of Hillsborough, in the Circuit
I i Court of Hillsborough County, rather than Appellai
^ No. 847. in the county in which the municipality was low, was s
District Court of Appeal of Florida. situated, since such statute does not give an Court of
Second district, absolute right to sue in any of the three junction 2
mentioned venues, but the word "only" as pumping <
Jan. 30, 1959. used therein merely indicates that such stat- in the C(
,Echaring Denied Feb. 18, 1959. ute sets a limitation on possible proper county tli
venues. F.S.A. 46.01. defendant
following

Action against a municipality for an in- 3. Venue =z3 "1
junction and for damages arising from the
pumping of water from its well field located Statute providing that a suit shall be tion ov
in a county other than that in which munici- begun only in the county where the defend- "2.
pality was situated. The Circuit Court, ant resides, or where the cause of action ac- tion o
Hillsborough County, Henry C. Tillman, J., crued, or where the property in litigation is a MuR
overruled municipality's motion to dismiss located, is limited by various other statutes, Pin.l
on ground of lack of jurisdiction and mu- and by common-law rules. F.S.A. 46.01,
nicipality .brought an interlocutory appeal. 66.02, 66.41. Thec
The District Court of Appeal, Shannon, J., "Th
held that the action could not be maintained 4. Common Law O=1 l second
in a county, other than that in which mu- An act, in order to change the common dismiss
nicipality was situated, since an action law, must clearly express that intention. jurisd









CITY OF ST. PETERSBURG v. EARLE Fla. 389
Cite as, Fla., 109 So.2d 388


In 5. Municipal Corporations C=1024 burg, a municipal corporation, located
Provision in municipal charter that a in Pinellas County, Florida,' as though
municipality "may sue and be sued and be it were a motion which sets up the
impleaded in all the courts of this State and question of improper venue."
in all matters whatsoever", did not author- The chancellor also in his order found
ize an action to be brought against the mu- that the present case would be governed by
nicipality outside the county in which it was the rule laid down in Williams v. City of
r an situated, since such language did not either ake City, Fla.1953, 62 So.2d 732, wherein
rom directly or indirectly express any intention was cited with approval the case of Piercy
1 o- on the part of the Legislature to change the v. Johnson City, 130 Tenn. 231, 169 S.W.
not common law in regard to actions against 765, L.R.A.1915F, 1029. The court in Wil-
[ills- municipalities, and such language was sirn- ams v. City of Lake City, supra, held that
was ply a holding-over of the right of a munici-unless there is a valid statute changing the
unless there is a valid statute changing the

onpality to sue and be sued generallyrule, a municipal corporation had to be sued

it- 6. Statutes 205 in the county in which it was situated.
However, the chancellor's order goes on to
The language in any legislation is to say:
be construed with the particular act of
which it is a part. "* that under the charter of

11 be the City of St. Petersburg there was an
end- ----- express provision which allowed the
Sac- Harry I. Young, Lewis T. Wray, Frank city in any suit where the court had
on is D. McDevitt, and Carl R. Linn, St. Peters- jurisdiction to sue and be sued in any
t to Iburg, for appellant. court in the state and in all matters
it for whatsoever. The charter of the city of
Sfor J. C. Davant, Clearwater, for appellees. St. Petersburg is found in Chapter 15,-
.rater
ater 505, of [Sp.] Laws of Florida [1931],
rcit SHANNON, Judge. and the first section of that chapter r
cuit reads: 'The inhabitants of the City of
than Appellant, as defendant in the court be- St. Petersburg, Florida, within the
was low, was sued by the appellees in the Circuit boundaries hereinafter designated, or .
ve an Court of Hillsborough County for an in- within such boundaries as may here-
three junction and for damages arising from the after be established, shall continue to
as pumping of water from its well field located be a body politic and corporate under
stat- in the County of Hillsborough, of which the name "City of St. Petersburg", and
roper county the .appellees were residents. The as such shall have perpetual succession,
| defendant filed a motion to dismiss on the may use a common seal, may contract
i following grounds: and be contracted with, and may sue

i "1. That the Court lacks jurisdic- and be sued and be impleaded in all the
.11 be tion over the subject matter. courts of this State and be in all mat-
fend- ters whatsoever' *. The claim is
n ac- "2. That the Court lacks jurisdic- made here that the language of the
on is tion over the City of St. Petersburg, charter of St. Petersburg above quoted
:utes, a Municipal Corporation, located in nullifies or qualifies the general rule as
46.01, Pinellas County, Florida." stated in Williams v. Lake City. I
think this claim is well founded and

The chancellor in his order stated in part: t is
S. "that under that statute, which is Sec-
"This Court is going to treat the tion 1 of the charter of St. Petersburg,
second ground stated in the motion to and under the case of Lakeland Ideal
mmon dismiss, to-wit: 'that the Court lacks Farm and Drainage District v. Mitch-
n. jurisdiction over the City of St. Peters- ell, 97 Fla. 890, 122 So. 516, that the




.. .. .... .. .. . .. ... .. .. . .. ... -. . .. .... .. . .. : -. -









390 Fla. 109 SOUTHERN REPORTER, 2d SERIES

venue in the instant case is properly "Section 2.01, F.S.A., provides that porati
placed in Hillsborough County, Flor- the common and statute laws of Eng- they
ida." land of a general nature down to July 4, whict
S1776-not inconsistent with the consti- ogniz
In other words, the chancellor held that contr
tuition and laws of the United States or -ontr
absent the cited language of the St. Peters- .
of this State-are in force. on lc
burg charter, the present suit would have to rule.'
be brought in Pinellas County, Florida, and "Under the common law no action
grounded his decision on this facet of the could be brought against a municipal *
case. corporation outside the county where it
1] For the purpose of reviewing the was situated, unless an express stat- Unit
[1] For the purpose of reviewing the r
ute authorized it to be sued elsewhere. forn
chancellor's order, it is necessary that we r h r t 9 5 i
take up, in the first instance, where this Marshall v Kansas ty 9 Kan48
case suld have been brought originally 148 P. 637, L.R.A.1915F, 1025; City of tana
case should haive been brought originally
and in the second place, assuming that it Jackson v. Wallace, 189 Miss. 252, 196 Ten
um. So. 223; 38 Am.Jur. 420, Par. 716. The Wes
should have been brought in Pinellas Coun- is
> 11appellant contends, however, that Sec-
ty, does the language of the charter of St. a
Stions 46.01 and 46.02, F.S.A., which case
Petersburg, "and may sue and be sued and 432
b .read as follows: 4
be impleaded in all the courts of this State
and in all matters whatsoever," give the "'46.01 Where suits may be begun. "
plaintiffs the choice of two counties in Suits shall be begun only in the county aga
which' to sue? (or if the suit is in the justice of the Cot
We realize, as the chancellor below did, peace court in the justice's district) of
that the courts of various states have ruled where the defendant resides, or where Na
:;both ways on this question. However, when the cause of action accrued, or where vid
"1 the Florida case of Williams v. City of Lake the property in litigation is located. sw<
City, supra, and the cases from other courts 'If brought in any county or justice
'-* ^ "' 1 ; If brought in any county or justice .
which are cited with approval are reviewed, district where the defendant does not
ta there can be no question of where it should p o s
reside, the plaintiff, or some person in fu,
( have been brought in the first instance. The is beh shall mae and file ith the
his behalf, shall make and file with the of
defendant takes the position that the ques- i
S. praecipe or bill in chancery, an affidavit ex
tion is jurisdictional, while the plaintiffs that the suit is brought in good faith, sh
.tlat the suit is brought in good faith,
urge that it is a question of venue. It is un- and with no intention to annoy the de-
and with no intention to annoy the de- C<
necessary that we decide this question in the fendant. This section shall not apply
instant case, and we do not. A majority of to suits against nonresidents. a
the cases from other states cited by the j
parties are concerned with a transitory "'46.02 Suits against defendants re- g|
cause of action, although in some of the siding in different counties or districts.
cases it is a local one. Suits against two or more defendants n
residing in different counties (or jus-
In the case of Williams v. City of Lake tices' districts) may be brought in any c.
City, supra, which was decided by the Su- district
county or district in which any defend-
preme Court of Florida in 1953, a tort claim ant resides.' c
was filed making Lake City a joint defend- e
ant in Duval County, Lake City being in are inconsistent with the common law 0
Columbia County, and a motion was filed in on the subject under the facts in this t'
Circuit Court to dismiss the complaint be- case, and that she is authorized to f
cause of improper venue, the court sus- maintain this action in Duval County. I
tainted the motion to dismiss and Justice We are not impressed by this argu- c
; "'Drew, speaking for the court, had this to ment. The majority of the courts have
say, in part [62 So.2d 734]: held that actions against municipal cor- I









CITY OF ST. PETERSBURG v. EARLE Fla. 391
Cite as, Fla., 109 So.2d 388

porations are inherently local and that which the right of action rests. Such
they must be sued in the county in actions are not only inherently local,
which they are located. While we rec- but it is of the greatest importance to A.
ognize that there are authorities to the the welfare of such bodies and of the '. i
contrary, we believe this rule is based citizens whom they serve, that their I j
on logic and reason and is the better officers should be permitted to remain
rule." at home and discharge their public du-
S* ties, instead of being called hither and
"This appears to be the rule in the thither over different parts of the state
"'This appears to be the rule in the t
United States Courts, in Alabama, Cali- to attend to litigation brought against
fornia, Georgia, Kansas, Maryland, the city through the agency of counter-
Michigan, Minnesota, Mississippi, Mon- part writs.'
tana, Nebraska, Ohio, Pennsylvania,
ta, N It will be noticed that the language of
Tennessee, Texas, Washingiton and
Tennessee, Texas, Washington ad Justice Drew, as well as the language in
est Virginia. The theory upon which Nashville v. Webb, supra, speaks of an ac-
this rule is founded is set forth in the
tion against a municipal corporation as
case of Nashville v. Webb, 114 Tenn. b i l or distance in the
A cc A 1 being inherently local. For instance in the
432,85 S.W. 404,405,4 Ann.Cas. 1169. Z
S85 S.W. 40, 405, 4 Ann.Cas. 1169. Webb case there was no defense by the City
"n that case, plaintiff brought suit of Nashville and a default and final judg-
against Nashville and others in Wilson ment were entered against it. The rationale
County for personal injuries by reason of that case is that the question was neces-
of a defective sidewalk in the City of sarily jurisdictional, a question which we do
Nashville-Nashville is located in Da- not decide in the present case.
vidson County. The city filed no an- '"
swer, although service was obtained Justice Drew cites with approval Piercy
upon its Mayor. Judgment was entered v. City of Johnson City, supra [130 Tenn. r
in behalf of the plaintiff for $4,000. 231, 169 S.W. 766], and it is necessary
SExecution was issued and placed in the that we take that case into considera- r
S funds (sic) of the Sheriff and the City tion. In that case, as in the present case,
} of Nashville brought suit to enjoin the the plaintiff was suing the city "in an action
execution on the grounds that the suit of damages caused to his land in Unicoi
should have been brought in Davidson county by the diversion of the waters of
County. The Circuit Court granted the two large springs out of their natural chan-
injunction and the Supreme Court nel and away from his land below." The
affirmed it. The Court used this lan- plaintiff had brought his suit in Unicoi
guage: County, whereas the City of Johnson City
was in another county. In holding that

t "'* But actions against mu- the defendant should be sued in the county
r nicipal corporations are inherently lo- in which it was located, the Supreme Court
cal. These bodies cannot change their of Tennessee in its decision treated the
situs or their place of abode. They problem of the local nature of the action
4 cannot remove from one place to anoth- as follows:
!. er, and sojourn for a time at this point
j or that. They remain stationary; hence "We need not discuss or decide
j they must be sued where they are whether the action for damages to
\. i found-that is, in the county of their realty growing out of the diversion of
location. It is a misnomer, a misappli- the flow of water from the springs is
cation of terms, to speak of an action one transitory or local in character,
against such a body as transitory, no as to which see Nashville, C. & St. L.
matter what the ground may be on Railway v. Weaks, 13 Lea (SI Tenn.)



2 *
"".'~ _~CTC-~-;-^-- -~ -\






A-



392 Fla. 109 SOUTHERN REPORPTEI, 2d SERIES

148, 149, and Mattix v. Swcpston, 127 should be permitted to remain at home
Tenn. 693, 155 S.W. 928. and discharge their public duties, in- Th
"If we assume, and proceed on that stead of being called hither and thither,. final
"If we assume, and proceed on that
bass, t n a n fr i y to over different parts of the state to at- j of W
basis, that an action for injury to .
tend to litigation brought against the doing
realty is local in character, then we
.&city.' $guag.
have two rules, seemingly applicable, cit'
which are in opposition, the one to "It is thus seen that the ruling is
the other. The first would remit the based on public policy. The Maryland
party plaintiff for action to Washing- court, which ruled as above, indicated
ton county in which is located the in Baltimore v. Meredith, etc., Turn- 6.
municipality to be subjected to liability, pike Co., supra [104 Md. 351, 65 A. the
the other to Unicoi county where the 35], in the later case of Phillips v. where
land is situated. .City of Baltimore, 110 Md. 431, 72 A. The
902, 25 L.R.A.,N.S., 711, in which was
"Which of the two rules should be involved a transitory cause of action,
declared paramount? expressly gave assent to the view that co
"While it must be admitted that it considerations of public policy forbid of
is held in a great majority of English the maintenance of such actions in a tri
and American cases that an action for county other than that of the munici-
damages to real property is local, that pality, thus:
doctrine was established over the opin- "'The principle that is involved is
ion of Lord Mansfield to the contrary tht of inconvenience to the exercise of ]
(Mostyne v. Fabrigas, Cowp., 161) and the sovereign authority delegated by stat
the views of Chief Justice Marshall in the state to its municipal corporations, sue
St Livingston v. Jefferson, Fed.Cas.No. upon the ground that if they are to be but
;0 8,411, 1 Brock 203. In arguing subjected to suit in any and every part it i
against the soundness of the rule Chief of the state, such suits must inevitably yen
Justice Marshall there said touching hinder and delay the successful con- vat
the lack of reason to support it: 'I duct of the functions of government.' 66.
have yet to discern a reason other than On
a technical one which can satisfy my contrast of the reasons that un- F
judgment. derlie the respective rules here under
consideration makes manifest to which

"On the other hand the reason for of them should be given the award of f
the rule in respect of actions against paramountcy. The one based on mere
: municipal corporations being local are technical grounds or, at most, on con-
far from being technical. This court siderations of the convenience of pri-
in the case of Nashville v. Webb, 114 vate individuals must, we hold, yield ch
Tenn. 432, 85 S.W. 404, 4 Ann.Cas. to the other founded on public policy as di
1169, speaking through the present well as public convenience." th
Chief Justice, said: st
Chief Justice, said: We can see no difference between the
"'It is a misnomer, a misapplication present case and the case of Piercy v. Joh--
of terms, to speak of an action against son City, supra, except that in the Piercy
O

such a body as transitory, no matter case no equitable relief was sought against 1
S,. what the ground may be on which the the city, and, "Owing to the fact that courts
right of action rests. Such actions are of equity act in personal rather than in

jt 'the greatest importance to the welfare actions at law do not apply with their full
of such bodies, and of the citizens rigidity to suits in equity." 56 Am.Jur.,
S:whom they serve, that their officers Venue, Section 21.




-
; ". -.CI--.I.~"*-- ~ cr r~-"-~ ~~-1.i -~"--XT- _~-l--c~-T ~C~- 7t~~"l~~r";I ~ -m_:nsr:.










CITY OF ST. PETERSBURG v. EARLE Fla. 393
Cite as, Fla., 109 So.2d 388

The chancellor ruled, in a portion of his corporate entity. Common sense would.
final order, in consonance with the decision indicate that it was not the legislative in-.
of Williams v. Lake City, supra, and in so tent to include as particular and technical ;
doing he was correct, in view of the lan- a subject as venue in so general a para-
guage used by our Supreme Court, and also graph. We can give several other reasons
by following the decision in Piercy v. John- avoiding such a construction of the char-
son City, supra. ter; as, for instance, that the language
used should not be construed so as to
[2,3] The plaintiffs urge that Section abrogate a rule of common law if another
46.01, Florida Statutes, F.S.A., gives them equally valid interpretation is available,
the right to bring this action in the county particularly if the alternative construction
where the property involved is located, is less strained, and it could be reasoned
The pertinent portions of the statute read: that the words "all the courts of this state"
"Suits shall be begun only in the could refer to types of courts as well as
county (or if the suit is in the justice their location Again, we might say that
of t the chancellor's interpretation would raise
of the peace court in the justice's dis-
) w e te d t r s, or serious doubts as to the charter's constitu-
trict) where the defendant resides, or
where the cause of action accruedor tionality in view of Article III, Section
where the cause of action accrued, or
here the property in litigation is o- 20, Florida Constitution, F.S.A., prohibiting
where the property in litigation is lo- .
cated." local laws "providing for changing venue
of civil and criminal cases," and a con-
However, it is well recognized that this struction rendering an act unconstitutional
statute does not give an absolute right to is always avoided, if possible.
sue in any of the three mentioned venues,
but the word "only" would indicate that [4,5] In the Williams v. Lake City
it'.is rather a limitation on possible proper case, supra, it was stated that in order to
venues. -The statute is further limited by sue a municipal corporation in another 1
various other statutes (see F.S. 66.02, county it was necessary that there be an i
66.41, F.S.A.), and by common-law rules, express statute authorizing it to be so sued.
One example is seen in Lakeland Ideal It is, to us, evident and we think, common ,
Farm and Drainage District v. Mitchell, sense, to hold that an act, in order to
97 Fla. 890, 122 So. 516, where the plaintiff cIalge the common law, must clearly ex-
: was not allowed to bring suit where the de- press that intention. The language used in
fendant resided because of the "local ac- the charter of St. Petersburg does not ex-
tion" conmmon-law rule. press, either directly or indirectly, any in-
i tention on the part of the legislature to
We come now to that portion of the change the common law in regard to ac-
] chancellor's order overruling the motion to tions against municipalities. The language
dismiss because the charter provisions of used in the charter is simply a holding-
the City of St. Petersburg state that it "may over, although no longer necessary, of the
he sue and be sued and be impleaded in all the right of a municipality to sue and be sued
courts of this State and in all matters what- generally.
cy soever." A vast majority of the charters
ast of municipal corporations still retain in [6] In addition to what we have just
ts them such language as is in the present said the language in any legislation is to
.in charter..- A plain reading of the paragraph be construed with the particular act of
S in question would lead to the conclusion which it is a part. For instance, in the case
ill that it is merely that general, very broad, of Spangler v. Florida State Turnpike Au-
., enabling provision found in varying forms thority, Fla.1958, 106 So.2d 421, 423, Jus-
in every city charter, which allows, or tice Thornal, in writing the opinion for
purports to allow the city to function as a the court, said:
109 So.2d---251










S94 Fla. 109 SOUTHERN REPORTER, 2d SERIES

"It is true that in generally defining While the Spangler case is not dircc'y
the powers of the Authority by Section in point with the present case, th. language
340.06, Florida Statutes, F.S.A., the used indicates the Supreme Courts' thinkii.
Legislature has provided that it has on this general subject.
the power 'to sue and be sued in its
own name'.t For the reason stated, the motion to dis.
own name. Nevertheless, consistent
miss should have been granted.,
with our own precedents as well as
analogous decisions of other states, we Reversed.
are of the view that this general provi-
sion included in the delineation of the KANNER, C. J., and ALLEN, J., con.
Authority's powers is not adequate in cur.
and of itself to constitute a waiver of
immunity from liability for tort. We E --
CO-EY N B U3ER SYSTEM
have specifically so held with reference
to counties. Section 125.01, Florida
Statutes, F.S.A., provides that county
commissioners shall represent the
county 'in the prosecution and defense Ray SALINAS, Appellant,
of all legal causes'. Section 125.15, v.
Florida Statutes, F.S.A., provides that RIECKI & FLEECE BUILDERS SUPPLIES,
'The county commissioners of the sev- INC., a Florida corporation, Appellee.
eral counties shall sue and be sued in
the name of the county of which they
are commissioners.' Despite this gen- District Court of Appeal of Florida.
y eral language in the legislative state- Second District
Sent of the powers of the counties, we Feb. 6, 1959.
have held throughout the years that a
county which is a division of the State Rehearing Denied March 3, 1959.
0 ` shares in the State's immunity from
q liability in tort actions. See Keggin v. Suit for specific performance of con-
Hillsborough County, 71 Fla. 356, 71 tract for sale of lots brought against ven-
So. 372. dors. The Circuit Court for Pinellas
n s r fai, dpite te ft County, John Dickinson, J., entered order
"In similar fashion, despite the fact
granting sp-cinc performance and vendors
that the Everglades Drainage District granting spcic prfor ad vendor
Se b s w appealed. The District Court of Appeal,
is endowed by statute with L1e power
we Frank A. Smith, A. J., held that where
'to sue and be sued', we have also
held that this legislative provision is contract provided for purchase of certain
'. .i .v number of lots at a specific price per lot
not sufficient to constitute a waiver of
with the total amount due eighteen montli
immunity of this state agency from from date of contract but after expiration
liability for damages in a tort action. of date of contract vendors accepted pu-
Arundel Corporation v. Griffin, 89 Fla.
chaser's payment for two of the lots co -
128, 103 So. 422. Consistent with these
ered and then purchaser offered to p>Y
*} earlier rulings this court has held that balance due on agreement but was in-
a Drain Distric organized under formed by escrow agent that vendors had
the general Drainage District Act, instructed it not to deliver any more decs.
Chapter 298, Florida Statutes, F.S.A., since aeeen at time of tender had r:
i imbsince agreement at time of tender had ,nQ
Sis similarly immune to liability for been terminated purchasers were entitlckt
damages resulting from an alleged tort. to specific performance
Rabin v. Lake Worth Drainage Dis-
trict, Fla.1955, 82 So.2d 353. *" Affirmed.




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