Hathaway v. Munroe

• Citation: 119 So. 149,97 Fla. 28
• Parties: HATHAWAY et al., State Road Department v. MUNROE.
• Decision Date: 22 January 1929
• Court: United States State Supreme Court of Florida

119 So. 149

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.

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 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 contract on bids received by the state road department for certain road and bridge construction in this state.

As a predicate for such restraining order, the bill in effect alleges that the execution of such contracts would be illegal because (1) the state road department has not adopted a budget for the year 1928 as required by law; (2) that the said contracts, if executed, would be in excess of the estimated income of the state road department for the year 1928; and (3) the state road department is already indebted in amounts actually due and near due by more than a million dollars in excess of the funds on hand and to be anticipated during the remainder of the budget year--in view of all of which allegations it is contended that the letting of said contracts and the contracting for the construction of said projects and the furnishing of work, labor, and material therefor would be in violation of the language, spirit, and intent of sections 2 and 6 of article 9 of the Constitution of Florida.

At a hearing held December 10, 1928, in which the state road department was not represented, a temporary restraining order was granted. A motion to dissolve the temporary restraining order was at once made and presented and granted as to projects 52, 763, and 765, but was denied in all other respects; several procedural matters which do not affect the disposition of the cause having in the meantime been heard and disposed of. Appeal is taken from the decree of the chancellor, dated December 10, 1928, granting a temporary restraining order, and from his decree, dated December 15, 1928, refusing to dissolve the said temporary restraining order and from his decree dated December 17, 1928, overruling the demurrer to the bill of complaint as amended and further refusing to dissolve the temporary restraining order.

The cause now comes on to be heard on an application for an order of this court superseding the orders appealed from.

OPINION

WHITFIELD J.

In a suit brought by a citizen taxpayer, the chancellor granted and refused to vacate an order enjoining the awarding and execution of state highway construction contracts by the state road department. An appeal was taken and a supersedeas is asked on the grounds that a citizen taxpayer has no right to maintain the suit and that the proposed contracts are legal and within the authority conferred by existing statutes. Section 1644. Comp. Gen. Laws 1927; section 1, c. 9312, Acts 1923.

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. See Anderson, v. Fuller, 51 Fla. 380, 41 So. 684, 6 L. R. A. (N. S.) 1026, note, 120 Am. St. Rep. 170; Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205. The wisdom or policy of official action may not be a predicate for an injunction when the action taken does not involve illegality or a palpable abuse of authority amounting to illegality.

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. See Willey v. Hoggson, 89 Fla. 446, 105 So. 126, and authorities cited; Johnson v. Turner, 44 Fla. 244, 33 So. 238; Powell v. Florida Land & Improvement Co., 41 Fla. 494, 26 So. 700.

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 objects of the suit, it should be denied unless upon due consideration it is clear that the order or decree to be superseded is erroneous.

If this were an ordinary ex parte application for a...