134 So. 211 (Fla. 1931), Sullivan v. City of Tampa

Citation:134 So. 211, 101 Fla. 298
Opinion Judge:BROWN, J.
Party Name:SULLIVAN v. CITY OF TAMPA.
Attorney:Charles F. Blake, of Tampa, for appellant. Karl E. Whitaker, of Tampa, for appellee.
Case Date:April 23, 1931
Court:Supreme Court of Florida
 
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Page 211

134 So. 211 (Fla. 1931)

101 Fla. 298

SULLIVAN

v.

CITY OF TAMPA.

Florida Supreme Court

April 23, 1931

En Banc.

Proceedings by the City of Tampa to validate an issue of refunding bonds, wherein B. M. Sullivan intervened. From a final decree validating the bonds, intervener appeals.

Affirmed.

Page 212

[101 Fla. 301]Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

Page 213

Charles F. Blake, of Tampa, for appellant.

Karl E. Whitaker, of Tampa, for appellee.

OPINION

BROWN, J.

The circuit court of Hillsborough county, by its final decree entered March 19, 1931, validated an issue of $200,000 of refunding bonds by the city of Tampa, a municipal corporation in Hillsborough county, Fla., for the purpose of refunding $200,000 of permanent improvement notes of said municipality, and the proceedings taken to authorize the issuance of said bonds, which were alleged in the petition for validation filed in said proceeding.

The issue of refunding bonds is to bear date of May 1, 1931, and consists of 200 bonds of the denomination of $1,000 each, bearing interest at the rate of 5 1/2 per centum per annum, payable semiannually, and which mature serially over a period of from three to twenty-five years from date.

In proceeding to issue its said refunding bonds, the city of Tampa acted under chapter 11855, Laws of Florida 1927. Proceeding under this act, the board of representatives of said city as its governing authority did, on the 17th day of February, A. D. 1931, adopt a resolution authorizing the issuance of said $200,000 of refunding bonds [101 Fla. 302] to refund $200,000 of permanent improvement notes theretofore issued by said city.

At the time of the adoption of said resolution there were outstanding and unpaid $200,000 of permanent improvement notes of the city of Tampa the issuance of which had been theretofore authorized under chapter 11764, Laws of Florida 1925, Extra Session, entitled, 'An Act Authorizing the City of Tampa to Issue a Limited Amount of Public Improvement Notes and Bonds Without a Vote of the People,' the issuance of which permanent improvement notes had been authorized by Resolution No. 2075-A, entitled, 'A Resolution Authorizing $200,000.00 Permanent Improvement Notes under Chapter 11764, Laws of Florida 1925, Special Session,' and Resolution 3148-A, entitled, 'A Resolution Authorizing $200,000.00 Permanent Improvement Notes under Chapter 11764, Laws of Florida 1925, Special Session,' duly passed by the city commission of the city of Tampa on the 30th day of March, 1926, and 1st day of February, 1927, respectively. All of the permanent improvement notes so authorized bore interest at the rate of 5 per cent. per annum, payable semiannually, and all of said notes are due and payable on the 1st day of May, 1931.

At the time of the adoption of the resolution authorizing the issuance of the $200,000 of refunding bonds, there remained outstanding an aggregate of $200,000 of such permanent improvement notes, bearing interest at the rate of 5 per centum per annum, and which mature May 1, 1931; said permanent improvement notes are by chapter 11764, Laws of Florida, 1925, Extra Session, made the direct obligation of the city of Tampa, and said notes on their face purport to be general obligations of said city, for the payment whereof, both principal and interest,[101 Fla. 303] as the same shall fall due, the full faith, credit, and resources of said city were irrevocably pledged.

In adopting resolution No. 963-B, authorizing the issuance of the $200,000 of refunding bonds of the city of Tampa to refund the $200,000 of permanent improvement notes, the board of representatives of said city purported to be acting in accordance with and as authorized by the provisions of chapter 11855, Laws of Florida 1927, entitled, 'An Act to Authorize the Issuance of Refunding Bonds by Counties, Cities, Towns and Other Municipal Corporations and Taxing Districts, and to Provide for Their Payment,' and after having found and declared the $200,000 of permanent improvement notes of said city issued as aforesaid to be an existing indebtedness of the city of Tampa lawfully made and undertaken by said city, by authority of law, the same were determined and declared to be existing, valid, and binding obligations of the city of Tampa for the full payment of which the credit of said city is lawfully pledged. Said resolution then purported to authorize the issuance of $200,000 of refunding bonds, to consist of $200,000 negotiable coupon bonds of the denomination of $1,000 each, numbered 1 to 200, both inclusive, dated May 1, 1931, bearing interest at the rate of 5 1/2 per cent. per annum, payable semiannually on the 1st days of May and November of each year, the principal thereof to be payable in annual serial installments maturing May 1st. Said resolution further declared that said refunding bonds should be the general obligations of the city of Tampa, and that for the payment of each of said bonds and interest as the same should fall due the full faith, credit, and resources of the city should be irrevocably pledged, and that for the payment of such bonds and interest there should be levied annually upon all taxable [101 Fla. 304] property within the corporate limits of the city a sufficient tax to provide for the payment of said bonds and interest thereon at maturity. Said resolution further authorized and empowered the mayor of said city to sell said refunding bonds at private sale, provided that none of said refunding bonds should be sold at not less than 95 per cent. of their par value and accrued interest to date of delivery. No provision was made in said resolution for the holding of an election wherein and whereby the issuance of said refunding bonds might be approved by a

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majority of the votes cast in said election in which a majority of the free holders who were qualified electors residing in said city of Tampa should participate, and no election was ever held in said city for the purpose of authorizing the issuance of said refunding bonds.

On March 19, 1931, the state attorney for the Thirteenth judicial circuit of Florida filed his answer objecting to the validation of said bonds as unauthorized and incorporating it his answer the answer filed in said cause by the intervener and respondent B. M. Sullivan.

On March 19, 1931, the appellant B. M. Sullivan, as intervener, filed an answer to the petition setting forth certain alleged causes why the bonds should not be validated as prayed for in the petition.

Certain proofs were taken before the Honorable L. L. Parks, judge of said court, on March 19, 1931, said proofs consisting of certain testimony, together with Exhibits A to C, inclusive, which are attached to the petition for validation.

On March 19, 1931, the return day, the cause came on for final hearing and the court entered a final decree in accordance with the prayer of the petition.

The appellant B. M. Sullivan, intervener in the court [101 Fla. 305] below, duly entered an appeal from said final decree to this court and has assigned various errors in the final decree.

The validity of the $200,000 permanent improvement notes of the city of Tampa which it is seeking to refund is not in issue. There is no contention by the intervener that the original obligations sought to be refunded by the city of Tampa were not obligations of the entire territory of the city of Tampa at the time it authorized the issuance of its refunding bonds. There is no contention by the intervener that the refunding bonds were issued in violation of any of the provisions or requirements of chapter 11855, Laws of Florida 1927.

We will first consider the contention of appellant that the city of Tampa was not authorized to proceed under the general refunding statute, chapter 11855, Laws of 1927...

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