13 Fla. 451 (Fla. 1871), County Comm'rs of Columbia County v. King

Citation:13 Fla. 451
Opinion Judge:RANDALL, C. J.
Attorney:R. W. Broome and S. L. Niblack for Appellants. J. J. Finley and Wm. Bryson for Appellee. Wm. Bryson for Appellee.
Judge Panel:HART, J., being interested in the question, did not sit in the case. RANDALL, C. J.
Court:Supreme Court of Florida

Page 451

13 Fla. 451 (Fla. 1871)




Supreme Court of Florida


1869, 1870

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Appeal from the Circuit Court for Columbia county.

Charles R. King, trustee, presented to the Circuit Court of Columbia county his petition for an alternative writ of mandamus, to be directed to Abel J. Hutchinson and others, composing the board of County Commissioners of Columbia county, and to their successors in office, commanding them to proceed to levy and collect a tax upon the property and persons within said county to pay certain installments of interest alleged to be due to the petitioner upon the coupons in his hands, which coupons represent the interest due upon bonds issued by the county, or to show cause why they should not do so.

The petitioner alleges that the county of Columbia is indebted to him in the sum of eighteen hundred dollars, being the amount of certain coupons, copies of which are annexed, and the further sum of three hundred and twenty-one dollars of interest accrued upon said coupons, which he had demanded and the county refused to pay. That in 1853 the Legislature of Florida by law incorporated the Florida, Atlantic and Gulf Central Railroad Company, with capital stock to be divided into shares of one hundred dollars each. That in 1855 the Legislature passed a law entitled "An act to provide for and encourage a liberal system of internal improvements in this State," wherein, by section 22 of said act, the Boards of County Commissioners of certain counties through which the railroad might pass, of which Columbia county was one, were authorized to subscribe for and hold stock in said company, with the approval of the voters of said counties, upon the same terms as other stockholders, and to issue bonds of such county, payable, with interest, at such times and places as they may deem proper, and dispose of the same for the payment of such subscription, pledging the faith and resources of such county for the payment of such bonds and interest, and that they should from time to time levy and collect such a tax as shall be necessary to pay the installments of interest and the bonds as they become due, or to create a sinking fund for the gradual reduction of the same, the rate of interest not to exceed ten per cent. per annum, and the receipt for the payment of such tax shall entitle the tax-payer to one share of stock for every hundred dollars of taxes paid, of the stock so subscribed for by the County Commissioners, which receipts are assignable, and no stock held by the county shall be assignable, except in exchange for the bonds, until the bonds shall be paid. That in September, 1855, the question whether the county of Columbia should subscribe for stock was submitted to a vote of the legal voters, and a majority of votes being in favor of such subscription, the commissioners subscribed for and took one thousand shares of the stock in said railroad company, and in payment of such subscription issued the bonds of the county to the amount of one hundred thousand dollars, bearing interest at eight per cent. per annum, payable semiannually on the first days of January and July in each year, which bonds were respectively dated and issued between the first of January, 1856, and 1860. That the bonds had coupons annexed representing the half-yearly interest, payable to bearer, at the city of New York, signed by S. L. Niblack, who was the President of the Board of County Commissioners, each coupon being numbered to correspond with the number of the bond. That petitioner is the bona fide holder of coupons to the amount of $ 1,800, long past due, payment whereof he demanded, according to their tenor and effect, and the same remain due and unpaid, and the County Commissioners have failed to levy and collect the tax as required by law, wherefore he prays the writ of mandamus, &c.

The following is the form of the coupons:

"Florida, Atlantic and Gulf Central Railroad Stock.--The county of Columbia, Florida, will pay the bearer, on the 1st of January, 186-, at their agency in the city of New York, dollars, being six months' interest on their bond, No.--. Signed, S. L. Niblack."

An alternative writ was issued, returnable on the 1st day of August, 1869, directed to the members of the Board of County Commissioners, commanding them to proceed, as a Board of County Commissioners, to levy and collect the amount so due the petitioner, to wit: $ 1,800, the amount of the coupons, and $ 324 interest which has accrued thereon since the coupons became due, or to show cause, &c.

The commissioners made return to the alternative writ, insisting:

1. That they were entitled to notice of the filing of the petition before the issuing of the writ, and

2. That the writ was issued in behalf of Charles R. King individually, and not as trustee, as named in the petition.

3. They admit that the bonds and coupons were issued as alleged.

4. They insist that the 22d section of the Internal Improvement Act, approved January 6, 1855, is unconstitutional and void, and that consequently the bonds issued were unauthorized and not binding upon the county.

5. That the issuing of the coupons was not authorized by law, and that the issuing thereof is compounding the interest, in violation of law.

6. That the indebtedness for interest is unliquidated in its nature, and can only be ascertained by bringing suit upon the bonds; that a mandamus can only be authorized after judgment recovered; that, in proceedings by mandamus, there is no power in the court to ascertain the amount due.

7. That the coupons do not purport to bind the county, but only S. L. Niblack.

8. That the Legislature has annulled and abrogated the contract between the county and the bondholders, by disrobing Columbia county without her consent of one-half her territory, in creating new counties from the territory composing the county at the time of the issuing of the bonds, and by the action of the national government and of the people of the State in abolishing slavery, and they insist that the bonds and coupons cannot be collected until compensation be made by the State, and that the redress of the relator must be had from the State.

9. That the Commissioners of Columbia county possess no legal power to assess and collect taxes beyond the boundaries of the county as now constituted, the property in the new counties taken from her territory having been liable to contribute to the payment of the bonds, and the new counties of Suwannee, Baker and Bradford should have been made parties.

10. That the commissioners exceeded their power in issuing the coupons, and that the demand should have been made upon the bonds for the payment of the interest, and not upon the coupons.

11. That the 8th section of article XII of the constitution prohibits the levying of taxes upon persons for paying the interest on any bonds issued by counties for the benefit of any chartered company, and that thereby the County Commissioners have no right to levy or collect a tax to pay these bonds and interest.

12. That the State has abrogated the contract of the county in this, that the county could not assign the stock until the bonds were paid, or in exchange for the bonds, thereby giving a lien to the bondholders upon the stock for the payment of the bonds and interest, and the trustees of the internal improvement fund, without process of law, have sold the railroad and its franchises, thereby depriving the county, as a stockholder, of its property and means of relieving itself of this indebtedness.

These are substantially the propositions set forth in the return and answer of the respondents.

The court adjudged that the return was insufficient, and directed the issuing of a peremptory mandamus, whereupon the respondents appealed.

Order for the peremptory writ reversed.

R. W. Broome and S. L. Niblack for Appellants.

We present the following law points as bearing on this cause and applicable:

A demand and a refusal to perform, is a pre-requisite to obtaining a writ of mandamus. Whea. Selwyn, 1093-4; Tapping on Mandamus, 71, 72, 73, 81, 368, 369.

The 22d section of the "Internal Improvement Act" grants to county organizations the power to issue bonds, which is clearly in violation of the fundamental law. Sec. 4, Art. VIII, Const. '39; 6 Fla. 610, and dissenting opinion, and references therein; 3 Peters' Dig., 556; Thomp. Dig., Restrictions on Power of General Assembly, p. 46.

We hold and contend that claiming interest on interest is in violation of then existing laws on usury. Thomp. Dig., 234-5.

We hold and contend that the books of a corporation are the best evidences of its acts, and when a fact is disputed, there must be some testimony to prove which is correct as to facts. 4 Wheat.

When an amount in excess of the face of a written obligation is claimed and disputed, it should be determined in a proper manner and in a proper action. We hardly think this will be denied.

A mandamus cannot lie in this case until after judgment at law and a refusal to pay the same. 4 Barb. Rep., 64; 28 Casey 108.

A common law judge cannot determine an amount due on a disputed claim save by consent, except through the intervention of a jury, as prescribed by law.

The Legislature cannot divest parties to a contract of their obligations, except by the consent of all interested; therefore, the new counties should be made...

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