State v. Gautier

• Decision Date: 25 March 1933
• Citation: 147 So. 240,108 Fla. 390
• Parties: STATE ex rel. HARRIS et al. v. GAUTIER, Mayor, et al.
• Court: Florida Supreme Court

147 So. 240

108 Fla. 390

STATE ex rel. HARRIS et al. v. GAUTIER, Mayor, et al.

Florida Supreme Court

March 25, 1933

En Banc.

Original proceeding by the State, on the relation of John S. Harris and others, for writ of mandamus against Redmond B. Gautier as mayor of the city of Miami, and others. On demurrer to the answer, and motion to strike portions thereof.

Motion denied, and demurrer overruled as to part of answer, and alternative writ quashed, subject to right of relators to file replication within 15 days.

COUNSEL Shutts & Bowen and Herbert S. Sawyer, all of Miami, and Thomson, Wood & Hoffman, of New York City, for relators.

J. W Watson, Jr., Hitchell D. Price & Charles W. Zaring, and Wm B. Farley, all of Miami, for respondents.

OPINION

BROWN, Justice.

On August 29, 1932, upon petition filed by relators, an alternative writ of mandamus was issued herein to require the officials of the city of Miami to budget, appropriate, and levy heavy taxes in the current year to pay past-due and maturing bonds and coupons of several issues of bonds of the city. It was alleged that there was past due and unpaid at the beginning of the fiscal year 1932-33, running from June 1, 1932, to May 21, 1933, on account of principal and interest on said bonds, the sum of $3,690.50 and that there had matured and would mature during the fiscal year, on account of principal and interest, the additional sum of $2,071,625. The respondents filed their answer on September 12, 1932; the relators interposed a demurrer and motion to strike portions of the answer on November 25, 1932; and the respondents filed a short amendment to their answer on November 29, 1932.

In the view which we take of the case at the present juncture, it is unnecessary for us to pass upon the several matters set up in the answer by way of defenses going to the merits. We might note in passing, that, among other things, the answer alleged that the bonds which the relators claimed to hold were not issued under chapter 9298 of the Acts of 1923, or any similar statute, but were issued under the charter acts of the city of Miami, and that under such acts the city is under no duty and has no authority to make any such assessment in any one year upon the property within its limits as is demanded by the alternative writ. While we do not deem it appropriate to now finally decide the question, we might observe that the court is very strongly impressed by the allegations of the answer, and the arguments in respondents' brief, with the thought that the applicable statutes in this case only contemplate annual tax levies sufficient to pay the interest on the bonds as the interest becomes due, and also an annual assessment each year sufficient to provide a sinking fund for the purpose of paying the principal of the bonds when they mature; that the statutory requirements are intended to prevent defaults in the periodical and ultimate payments so as to avoid accumulations of indebtedness, and that levies for this purpose may be enforced by timely and appropriate procedure; whereas here the alternative writ commands the levy of taxes in the current year sufficient to pay all pastdue and maturing bonds and past-due as well as current interest, instead of confining the command to the levy of taxes in the current year sufficient to pay current and maturing interest, and leaving past-due and maturing principal and past-due interest to be redressed in actions on the contracts, or to be adjusted by refunding bonds authorized by statute. The petition in this case does not pray for, and the writ does not command, the levy of a tax for sinking fund purposes. There are several other very important questions raised by the answer, such as that the city has already levied as high a tax as, under the facts, the law would compel; but as we have already observed with regard to the question above briefly alluded to, we deem it unnecessary and inappropriate to decide these questions at this point in the proceeding.

At the very threshold of this case, we are confronted with the question as to whether or not these relators have any clear legal right to bring and maintain this action.

In their original petition, and in the alternative writ issued thereon, it was alleged that the relators were the 'joint owners and holders' of some of said bonds of each issue described therein. The answer flatly denied this allegation, and averred in effect that the relators were not the owners of the bonds, nor the real parties in interest, but acquired possession of the bonds while acting as agents and employees of the city for the purpose of assembling the bonds in question and exchanging them for refunding bonds which had been printed and executed under statutory authority already secured, for which services the relators had been paid by the city considerable sums of money for expenses incurred under the contract of agency. The relators then asked leave to amend paragraph II and XII of the alternative writ, which, over respondent's objection, was later granted (see 146 So. 562).

By the amendment to paragraph II of the alternative writ, filed by the relators on December 13, 1932, it was alleged that 'the relators are the joint holders of, and are vested under the terms of a certain deposit agreement as trustees of an express trust, with legal title to, all of the bonds and obligations herein above described, and with all the rights and powers of the owners thereof, with the power to take and institute, prosecute, conduct and otherwise exercise control over, or participate in, or cause to be taken, instituted or prosecuted, or become a party to, any suit, action or other proceeding, legal or otherwise, in the names of the relators themselves, to effect a collection or to compel the levy of a tax to provide funds with which to pay said bonds; all of which more particularly appears from the deposit agreement,' a copy of which was attached and made a part of the amendment. Paragraph XII of the writ was also amended, so as to include among other things the allegation that 'the relators are the joint owners and holders under the terms of said deposit agreement of some of said bonds of each issue hereinabove described,' etc.

On February 2, 1933, respondents, by leave of the court theretofore granted, filed an amendment to their answer addressed to the foregoing amendment by the relators to the alternative writ, in which, inter alia, the respondents point out that the deposit agreement above referred to was not legally executed, and was not prepared in accordance with the agreement which had previously been made, as shown by the original answer, between the city and the relators, but was inconsistent therewith, and in many respects not only not contemplated thereby, but antagonistic thereto, as set forth in detail in said amendment to the answer.

Relators, on February 13, 1933, filed a demurrer to, and a motion to strike certain portions of, the amendment to the answer filed February 2, 1933. The case having already been briefed and argued, counsel for both sides later signified their desire to submit the case as it now stands upon the pleadings and briefs already filed. For reasons which will presently appear, and as the court will only consider such portions of the pleadings as the court deems pertinent and material, it is unnecessary to now specifically rule upon all the various demurrers to, and motions to strike designated portions of the voluminous pleadings.

In order to get a clear understanding of the court's opinion and decision, it will, however, be necessary to summarize some of the allegations of the answer and amendments thereto, but before doing so it might be helpful to first advert to certain former decisions of this court which have a vital bearing upon the question respecting the right of the relators to maintain this action.

Mandamus is an extraordinary remedy, and will not be allowed in cases of doubtful right of relator to demand performance by the respondent of the particular duty alleged. The relator must show not only a duty on the part of the respondent, but also that the relator has a clear legal right to enforce the performance of that duty. State v. Gray, 92 Fla. 1123, 111 So. 242; Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41, and cases therein cited.

A mere agent of the owner of land cannot maintain in his own name a suit to enjoin the collection of taxes alleged to be illegally imposed thereon. King v. Gwynn, 14 Fla. 32.

Wherever two parties stand in such a relation that, while it continues, confidence is naturally reposed by one in the other, and this confidence is abused, or exerted to obtain an advantage at the expense of the confiding party, the party so availing himself of his position will not be permitted to exercise or retain the advantage thus obtained. Even if the inequity of the plaintiff is insufficient to warrant the cancellation of the contract, yet the plaintiff may be refused its enforcement, The doctrine of clean hands need not be pleaded in order to be available, where the evidence discloses its applicability. Dale v. Jennings, 90 Fla. 234, 107 So. 175.

One who assumes the position as agent of the owner for the purpose of paying taxes for the owner cannot while occupying such status allow the property to sell for taxes and acquire a tax deed under a certificate of sale so made. Such deed will not convey a valid title as against the owner. Clark v. Johnson, 91 Fla. 485, 107 So. 636.

The term 'fiduciary or confidential relations' is a very broad one, and embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in or relies upon another. The rule of law prohibiting dual agency, while well...