119 So. 149 (Fla. 1929), Hathaway v. Munroe

Citation:119 So. 149, 97 Fla. 28
Opinion Judge:WHITFIELD, J. [97 Fla. 37] BUFORD, J.
Party Name:HATHAWAY et al., State Road Department v. MUNROE.
Attorney:Fred H. Davis, Atty. Gen., H. E. Carter, Asst. Atty. Gen., D. Stuart Gillis, of De Funiak Springs, and W. J. Oven and B. A. Meginniss, both of Tallahassee, for appellants. Watson & Taylor, of Quincy, for appellee.
Case Date:January 22, 1929
Court:Supreme Court of Florida
 
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Page 149

119 So. 149 (Fla. 1929)

97 Fla. 28

HATHAWAY et al., State Road Department

v.

MUNROE.

Florida Supreme Court

January 22, 1929

En Banc.

Suit by Mark W. Munroe against Fons A. Hathaway and others. Decree for complainant, and defendants appeal and apply for a supersedeas. Supersedeas granted.

Statement by TERRELL, C.J.:

Ellis, C.J., dissenting.

Syllabus by the Court

SYLLABUS

Taxpayer may enjoin execution of illegal contracts involving payments from public funds to which he is contributor. A citizen taxpayer may have a right to maintain a suit to enjoin the execution of illegal contracts involving payments from a public fund to which the citizen taxpayer is a contributor.

Wisdom or policy of official action is no predicate for injunction, where action does not involve illegality or palpable abuse of authority. The wisdom or policy of official action may not be a predicate for an injunction when the action taken does not involve illegality or palpable abuse of authority amounting to illegality.

Whether supersedeas should be granted is for judicial determination. Whether a supersedeas should upon appropriate application be granted, is for judicial determination upon due consideration of all rights in the premises, of the effect of a supersedeas upon the subject-matter and of the main objects of the suit or action.

Supersedeas is generally invoked to maintain status quo of property or of rights pending appellate proceedings; supersedeas will generally be granted if it will preserve rights pending appellate review and record presents substantial debatable question materially affecting rights of parties; supersedeas will not be granted in case it would permit status of subject-matter to be changed so as to render subsequent proceedings ineffectual. A supersedeas is generally invoked to maintain the status quo of the property or of the rights constituting the subject-matter of the litigation, pending appellate proceedings. In general, a supersedeas will be granted if it will preserve the rights of the parties pending appellate review and if the record properly presents a substantial debatable question materially affecting the rights of the parties in the premises. But, if a supersedeas would permit the status of the subject-matter to be changed so as to render subsequent proceedings in the cause ineffectual with reference to the main object of the suit, it should be denied unless upon due consideration it is clear that the order or decree to be superseded is erroneous.

Supersedeas should be granted on application to court en banc in case court is of opinion as matter of law that injunction should not stand. Where application for a supersedeas is made to the court en banc and the matters of law involved have been briefed and orally argued by counsel for all parties; and, upon due consideration, the court is of opinion that, as matter of law on the record as presented, the injunction should not stand, a supersedeas should be granted by the court, particularly in cases having precedence.

Section 2 of article 9 contemplates that sufficient revenues shall be raised each year to defray the expenses of the state for that year, and that during any fiscal year no indebtedness for expenses of the state shall be incurred substantially in excess of the revenue that may be provided for that year.

Section 6, art. 9, in effect forbids the issuing of state bonds or other evidences of state indebtedness except to repel invasion or to suppress insurrection in the state; the state now having no outstanding bonds to be redeemed or refunded.

Contract for construction of highway to be paid for from funds already provided by law does not violate constitutional provision limiting indebtedness (Const. art. 9, § 2). A contract under the statute for constructing state highways is not a violation of section 2, art. 9, when the construction is to be paid for from funds already provided for by law and which will probably be in hand before the construction is completed.

Contract for construction of highways, merely providing for paying for work as done, does not violate constitutional provision relating to issuance of bonds (Const. art. 9, § 6). A contract under the statute for the construction of state highways does not violate section 6 of article 9, since it does not involve the borrowing of money or the issuing of bonds or other evidences of state debt, but merely provides for paying for state highway construction as the work is done.

That unpaid accounts of state road department may illegally exceed revenue for year does not render illegal construction contracts to be performed subsequently. Even though the unpaid accounts of the state road department for any year may illegally exceed the revenue of the department for that year, that alone does not render illegal any construction contracts that are to be performed after that year and to be paid for from funds already provided by law to be raised for future budgets.

Page 149

[97 Fla. 30] Appeal from Circuit Court, Leon County; E. C. Love, Judge.

COUNSEL

Fred H. Davis, Atty. Gen., H. E. Carter, Asst. Atty. Gen., D. Stuart Gillis, of De Funiak Springs, and W. J. Oven and B. A. Meginniss, both of Tallahassee, for appellants.

Watson & Taylor, of Quincy, for appellee.

On December 8, 1928, Mark W. Munroe filed his bill of complaint in the circuit court of Leon county against Fons A. Hathaway and

Page 150

others as members of the state road department, seeking to restrain them from awarding any contracts, accepting any bids on contracts, or the execution of any...

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