State ex rel. Dos Amigos, Inc. v. Lehman

• Decision Date: 22 November 1930
• Citation: 100 Fla. 1313,131 So. 533
• Parties: STATE ex rel. DOS AMIGOS, Inc. v. LEHMAN et al.[*]
• Court: Florida Supreme Court

131 So. 533

100 Fla. 1313

STATE ex rel. DOS AMIGOS, Inc. v. LEHMAN et al.^[*]

Florida Supreme Court

November 22, 1930

En Banc.

Proceeding by the State, on the relation of Dos Amigos, Inc., for writ of mandamus to be directed to H. J. Lehman and others constituting the City Commission, Mayor, and City Clerk and Tax Assessor, of the City of Sanford.

Writ granted.

COUNSEL

Fleming, Hamilton, Diver, Lichliter & Fleming, E J. L'Engle, J. W. Shands, F. P. Fleming, and J. M Bryant, all of Jacksonville, for relator.

Fred R. Wilson, of Sanford, and Cary D. Landis, of De Land, for respondents.

OPINION

TERRELL C.J.

On September 2, 1930, this court granted its alternative writ of mandamus directed to the city commission of the city of Sanford, Fla., commanding said commission to convene without delay and revise its budget for the fiscal year 1930-1931 so as to include therein, and to appropriate for the payment thereof, a sum equal to all past-due principal and interest of the bonds and certificates of indebtedness of said city as described in said alternative writ including all principal and interest of said bonds and certificates of indebtedness which will mature and accrue prior to the end of said fiscal year, and to levy on all the taxable property within said city a tax sufficient to produce the sum so appropriated. The alternative writ further commands the mayor, city clerk, tax assessor, and tax collector, of said city, to do and perform all other acts and deeds required by law to carry out the commands of said writ.

October 2, 1930, on motion of relator, the alternative writ was amended to forbear the levy of any tax to cover the principal of bonds or certificates of indebtedness past due or to mature prior to September 30, 1931, but in lieu thereof to require the levy of a tax sufficient when collected to pay (1) all past-due interest represented by coupons on said bonds and certificates of indebtedness, (2) all interest represented by coupons becoming due and payable during the said city's fiscal year commencing October 1, 1930, and (3) all interest at the contract rate from their respective dates of maturity to September 30, 1931, on bonds and certificates of indebtedness of said city which are now past due and which will mature during the fiscal year ending September 30, 1931 (the said last-named interest not represented by coupons).

To the alternative writ as amended the respondents filed their joint and several return to which the relator has demurred and has moved to strike designated portions thereof. The cause now comes on to be disposed of on the issue raised by the demurrer to and motion to strike portions of the return to said alternative writ.

The demurrer to and motion to strike portions of the return to the alternative writ raise two primary questions, the first of which is that parties other than the relator have brought suits in the United States District Court for the Southern District of Florida challenging the validity of the bonds described in the alternative writ.

It is a well-settled general principle of law that the plea of a prior action pending will abate a later action or suit in the same court or other court of like jurisdiction if the parties are the same and both suits are predicated on the same cause of action, 1 C.J. 45, and cases cited, 1 R. C. L. 10. The rule is also well settled that the pendency of a prior suit in a federal court is not ground for the abatement of a like suit in a state court, even though both suits are brought in the same state by the same parties and for the same cause. 1 C.J. 87, 1 R. C. L. 18.

On the basis of the second rule as thus detailed, the plea of a prior action pending must fall because the prior action was brought in the federal court while the instant cause was initiated in this court. The said plea falls before the first rule for the following reasons: (1) The parties to the suit in state and federal courts are different; (2) it is not shown that the suits in the state and federal courts are brought for the same purpose; and (3) no facts are set up on which the nature or the purpose of the federal suits may be determined. For these reasons and others apparent on the record the defense of another suit pending is without merit. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909; Davant v. Weeks, 78 Fla. 175, 82 So. 807; Michigan Railway Commission v. Detroit & M. Railway Co., 178 Mich. 230, 144 N.W. 696, affirmed in 240 U.S. 564, 36 S.Ct. 424, 60 L.Ed. 802; International & G. N. R. Co. v. Barton, 24 Tex.Civ.App. 122, 57 S.W. 292; Holmes County, Mississippi v. Burton Construction Co. (C. C. A.) 272 F. 565; Kesterson v. Southern Railway Co., 146 N.C. 276, 59 S.E. 871; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A. L. R. 1077.

The second primary question raised by the pleadings herein may be stated as follows: Is the fact that misfortune or poverty have befallen a municipality any defense for it to refuse to levy a tax sufficient to pay the principal and interest on its outstanding bonds as they mature when the statute authorizing them requires that this be done, and has this court the power to modify the duty imposed on the city by such statutes?

The bonds and certificates of indebtedness on which relator seeks to require the levy of a tax sufficient to pay current and past-due interest aggregate more than $6,500,000, were negotiated over that term of years from 1910 to 1928, as provided by the City Charter of Sanford (chapter 9897, Sp. Acts of 1923 Laws of Florida), and chapter 9298, Acts of 1923 Laws of Florida (section 3022 et seq., Compiled General Laws of 1927), and chapter 11855, Acts of 1927 Laws of Florida, authorizing the issuance of refunding bonds by cities and other governmental entities. The past-due and current interest represented by coupons attached to these bonds and certificates of indebtedness aggregate more than $800,000, and the assessed valuation of the city of Sanford is $10,900,000.

As a defense to the command of the alternative writ to levy a tax to pay current and past-due interest, respondents say that additional large levys have been made to meet operating expenses of the city government and to pay outstanding obligations of the city previously incurred; that the assessed valuations in the city have fallen from more than $21,500,000 in 1927 to their present valuation of $10,900,000; that the percentage of tax collections during the past ten years has run from 56 to 97 per cent.; that the population of Sanford is now ten thousand, whereas in 1926 it was thirteen thousand; that only one thousand one hundred and ninety-six of its citizens are taxpayers; that the city of Sanford is in Seminole county, Fla., wherein it is assessed sixty-eight and one-half mills state and county tax on a valuation of $3,000,000; that the city of Sanford as a municipality has suffered a loss of more than $1,000,000, and its people individually have suffered losses aggregating $5,000,000 through bank failures the last three years; that many of its business firms have gone into bankruptcy, others have withdrawn from business in Sanford, a number of homes and apartment houses have been sold at foreclosure, and others have been razed with a view of reducing taxes. It is also alleged that within six blocks of the post office at Sanford there are sixty-six vacant stores, and that in Sanford proper there are four hundred vacant homes; that the various stocks of merchandise in Sanford have been decreased 50 per cent. the last four years; that the Atlantic Coast Line Railway shops which employ a large number of men have for some time been running on 50 per cent., normal output and daily pay roll; that business and residential property has little or no value; that the number of gas meters, water meters, electric meters, telephones, and receipts from the post office have materially decreased the last three years; that very few building permits are being issued; and that the city is suffering from other misfortunes not necessary to recite. It is asserted that to require the city of Sanford, in the face of this defense, to levy a tax as required by the alternative writ will result in forcing many who are now paying taxes to abandon their property, and that it will ultimately break down the morale of its citizenship.

This is not a propitious showing. In fact when viewed in the large it presents a situation that has aroused the deep concern of this court, but on thorough analysis we are impressed with its compensating features. It is not shown or alleged that the condition at Sanford was induced by any social or physical cataclysm devastating in its consequences. It was argued at the bar that it was largely a result of the 'boom' of 1925 and the 'fly quarantine' of 1928 and 1929. The record discloses, however, that every bond issue about which the city now complains was voluntarily assumed and negotiated under the aegis of legislative fist after the people of Sanford were fully advised of the purpose and consequences of their issue. The record further discloses that the proceeds of the bonds were used for authorized municipal purposes, and that the city has since their issue and is now enjoying the product of these bonds in improved streets, improved water front, improved drainage, improved utilities, improved valuations, municipal ball and golf parks, and other municipal and general improvements. It is also shown that these bonds were validated by court decree that their payment was guaranteed by the taxing power or ability of the city, and, while it may be that this power has been somewhat impaired, it is still substantial and is in fact responding to other demands out of all proportion to the...