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11-09-43 Adjourned 21.94 COUNCIL CHAlIBER November 9th, 1943 The Council met in adjourned session at 7:30 P.ll. with the City Attorney and the following members preeut: llr. Hill, llr. Jacobs, llr. lliller, llr. llcFee and llr. Wodiechek. A letter was read frcim the Kiwanis Club inviting the members to a noon luncheon on November 18th. The Clerk wae instructed to write the Kiwanis Club, accepting the invitation and thanking them for their courtesy. The llayar brought up the matter of compensation to be receivwd by the members serving on the Election Board November 23rd. llr. Wodischek moved that each IIIIlmber of the Board be-paid five dollare ($5.00) per day and allowed two meals. llr. lfiller seconded the motion and on roll call the vote was as follows: llr. Hill yes, llr. Jacobs yes, llr. )(iller yu, llr. lleFee yee, llr. Wodischek yu. The motion carried. The Kayor stated that inumuch as the Council had de- cided to lIIIlet in adjourned session for the purpose of coneidering the qUalifications presented by candidatee in groupe "A","B" and "C", he asked that the City Attorney render his legal opinion on earne. Thereupon the City Attorney read the follOwing letter: November 9:;<:1943 The HonCilrable City Council, Delray Beach, Florida. Gentlemen: You have aeked us as City Attorneye to de- tine the tenn "improved real estate" as used in Sections 13 and 17 of our City Charter. For the information of the Council, these two Sectione or our Charter were amended by the Florida Stete Leg1elature in ite 1941 eeuion and as amended they now read ae follows, to-wit: "Section 13: Kemltere of the City Council ehall be qualified electors of this City, 2195 November 9th, 1943 and shall have paid City taxes on improved real estate within the City limite for the year preceding the year in which the elec- tiOl'1 is held. Any member of the City Council who ceases to possees the qualificatione which are herein required or shall be con- victed of a felonyellall~forfeit hie office, and it shall be the duty of the remaining membere of the City Council to declare the office vacant and to proceed to fill the vacancy as hereinafter provided in thie Charter Act." "Section 17: Forsone entitled to hold the elective orticee enumerated in the foregoing sections, shall be qualified electore within the meaning of this Act, ehall own improved real estate within the limits of said munici- pality for one year prior to announcing candi- dacy for euch offices, and the inetrument by which title to such improved real estate is held must have_ been of record in the office of the Clerk of the Circuit Court of Palm Beach County, Florida, for one year prior to annQUDC- ing candidacy for such offices, and ehall have such other qualifications as may be h~reinafter preecribed. Each of the said officers shall perfonn the duties of their respective officee as elsewhere provided in this Act, or as may be provided by ordinance or laws of said City, and before entering upon the dutiee of their respective offices, they shall each take and subscribe to the following oath: "I do solemnly swear (or affinn) that I will eupport, protect and defend the Conetitution and Government of the United States, the State of Florida, and of the City of Delray Beach; that I am duly qualified to hold office under the laws of the Sta:he of'Floridli:, _ the charter and laws of the City of DelrayBeach, and that I will well and faithfully perfonn the duties of City Councilman of the City upon which I am about to enter, so help me God." November 9th, 1943 In our opinion the term "improved real estate" 18 generally understood in this community when referring to city property, as being rel\l property on which has been erected a dwelling or other structure. When used in reference to lan4 outside of the city limits, it usually means land having erected thereon a dwelling or other structure or land which is cultivated. In the case of Voight vs. lleyer, 59 N.Y. Supp. 70, 72, 42 App. Div. 350, the Court held as follows: "These terms are to be taken in the popular sense, according to the general understanding of the community, when dietinguiahing what is called wild lands, or land in a state of .&ture, frClll\ that which has been cultivated and improved. To improve and cllltivate mar be considered Iynonymoue. To cultivate 1"e defined as to improve the product of the earth by manual induatry. When speaking '" of improved land, it is generally understood to be such ae has been reclaimed, is used for the purpose of hue- bandry, and ill cultivated as such, whether the appropria- tion is for tillage, meadow, or pasture." So, in Doolittle v. Tice (N.Y.) 41 Barb. 181, 185, the court saye: . "Reaping, alone, can ecarcely be considered as cultivating. Nor can the keeping up a fence already made, mowing the grass, and cutting brush, be considered an imProvement." The term ueed in our Charter is "improved real estate". In our opinion this term is synonymous with the term "imProved land". ,'lbe term "improved land" has been defined by the Courts of this country as follows: · , Improved ' , as used in Rev. St. c. 136, S 9, authQriil:ing the owner of land, who shall have im- . proved the same and erected a division fence, to recover of the adjoining owner the value of such part of the fence as it was his duty to build, means land which is used in any way or for any purpon, or occupied by building. '18gin v. Bap- tist Soc., 43 N. H. 260, 261." " I Improved ' , as used in a deed describing the boundary of the granted premises as "then running northerly by land improved by A. to the raad," means occupied or held. 'lbe word "improved" is not a technical word, having a precise legal meal'1ing. Indeed, thel:'e is no very good authority for its use in the sense in which it ill not infrequently "J.';IO 21.97 Noveni:ler 9th, 1943 employed in familiar ep"'ech, viz., occupied or held. Bond v. Fay, 90 llasa. (8 Allen) 212, 215. ",'.'-Improved land, I as used in Rev. St. c 51, S 36. requiring railroads to make legal, sufficient fencee alCJDg the line of their location, where the road pa.... through inclosed or improved land, should be construed to include the la.nd appurtenant to a dwell- ing house and barn. "Improved" is not a technical word, having a precise legal meaning, when applied to real estate, but may mean land that ie oceupied. Bouv. Law Dict. Ae generally understood, improved land is that which is occupied or made better by care or cultivation, or whieh is employed for advantage. Osberne v. Canadian Pac. ~. Co., 32 Atl. 902, 903, 87 Ke. 303 (citing Webst. Dict.; Wilder v Jltine Cent. R. Co., 65 lle. 332, 339, 20 Am. Rep. 698)." In our opinion a vacant city lot on which there are no etruc- taree of any kind and which is not cultivated, occupied or used in any mahner whatsoever, is not improved real estate within the meaning of the term as used in Sections 13 and 17 Gf the City Charter of the City of Delray Beach, Florida. Very truly yours, ADAllS & NOWLIN By J.W. Nowlin. The llayor then aeked if any of the members :were familiar with the land in Pine View subdivisie,", for which Yr. Ifiller has preeented a deed, and if they considered it what is generally termed all "improve4 p"perty". llr. Hill stated he is .acquainted with the property in quution and that it had been"under culitvation in the past. Dr. C.W. Vogler addr....d the Council, questiening the con- etitutienality of the Amendment to the Charter, which providn for the qualificatione of dandidatee, and ..ked if it would not be possible to obtein the Athrney-General'e opinion OIl eame. The City At.torney explained that the constitutionality of the Amendment had never been put to a test. After a lengthy discussion, Ilr. Hill moved that the November 9th, 1943 qualifications of llr. )(iller be accepted and his name placed GlIl the ballot for the primary election, November 23rd. Kr. Wod- bchek seconded the motion and on roll call the vote 111.8 as rollOWll: Kr. Hill yes, Kr. Jacobs no, llr. Killer yes, llr. KcF.. no, llr. Wodischek yea. The motion carried. llr. Jacobe and Kr. lleF.. each individually explained that their vote of "no" lIU made because they felt that the decillion rondered by the City Attorney ehouldbe upheld as Hid decision is considered legally correct tmlell8 proven otherwise by a euperior authority. Qualificatione Qf the other candidates .re then consi_red. Kr. Wodiechek mowd that the qualifications of .r. W.K. Waters, Kr. If.A. Jacobs, Kr. J.K. Gwynn, Kr. J.K. Sabath, Kr. C.W. Hill and Kr. John Thayer be accepted and their' namIB placed on the ballot for the primary elltction. llr. Hill B8cGnded the motion and on roll call the vote was as follows: Kr. Hill yee, llr. Jacoba yes, llr. lliller yes, llr. llcF.. Yell, Kr. Wodischek yu. IIotioncarried. The City Attorney Wall instructed to have the ballot. printed for the primary election. It was regularly moved, seconded and carried that Council adjourn. ~ J ~n. J 4,~:.'"t. Acting City Clerk Approved: ~ {).,,~.-e r llay.i-. 2:198