Board of Public Instruction for Lafayette County v. First Nat. Bank

• Decision Date: 08 October 1932
• Citation: 111 Fla. 4,143 So. 738
• Parties: BOARD OF PUBLIC INSTRUCTION FOR LAFAYETTE COUNTY v. FIRST NAT. BANK OF GAINESVILLE.
• Court: Florida Supreme Court

143 So. 738

111 Fla. 4

BOARD OF PUBLIC INSTRUCTION FOR LAFAYETTE COUNTY v. FIRST NAT. BANK OF GAINESVILLE.

Florida Supreme Court

October 8, 1932

Commissioners' Decision.

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Action by the First National Bank of Gainesville against the Board of Public Instruction for Lafayette County. Judgment for plaintiff, and defendant brings error.

Affirmed.

ELLIS J., dissenting.

COUNSEL

Doggett, McCollum, Howell & Doggett, of Jacksonville and Lester Summersill, of Mayo, for plaintiff in error.

Hampton & Jordan, of Gainesville, for defendant in error.

OPINION

ANDREWS C.

The declaration filed July 14, 1925, alleged in substance in the first count that: On December 6, 1920, the defendant board at and in a regular session adopted a resolution which, after reciting that the schools of the county were 'in need of funds to successfully carry on their work, and that the Board deemed it necessary to borrow some money,' authorized the chairman of the board and the county superintendent to borrow $20,000 at 8 per cent. interest from the plaintiff bank and the First National Bank of Live Oak; that the resolution was signed by all the members of the board; that on December 20th following the board's chairman and the county superintendent, acting pursuant to the resolution, procured the plaintiff bank to lend the board $10,000, and to evidence same executed and delivered to the bank the note sued on payable in six months, with interest at 8 per cent.; that the bank paid, and the board received, the $10,000 'for the uses and purposes aforesaid.'

The second count invoked the allegations of the first count, and, in addition, states that on June 20, 1921, the defendant was indebted to the plaintiff in the sum of $10,000 for money loaned by the plaintiff to the defendant on December 20, 1920, at the request of the defendant, for the purpose of paying any and all legitimate expenses incurred, 'or to be incurred,' by the defendant in operating the schools of Lafayette county. (The phrase in quotations above was stricken out on motion.) A demurrer was sustained to a third count.

Defendant filed 17 pleas, all of which were stricken on August 7, 1928, except Nos. 1, 2, 4, 5, 11, 13, 14, and 17, which were in substance as follows: (1) That the resolution for the borrowing of the money was not passed at a regular meeting of the board; (2) denied that the resolution was signed by the board members at a regular meeting, and alleged that, on the contrary, the resolution was signed at different times and places by the several members of the board respectively, (4) alleged that the board never was indebted as alleged; (5) denied that the money was borrowed for the purpose of paying legitimate expenses incurred in the operation of the county public free schools; (11) alleged that, at the time the money was borrowed, the board had already borrowed in that same year more than 80 per cent. of its estimated budget and the previous loans had not been repaid; (13) denied that the board ever received any part of the $10,000; (14) alleged affirmatively that the money was not received by the board for the purpose of paying legitimate expenses incurred in the operation of the county free public schools; (17) denied the execution and delivery of the note. Issue was joined on these pleas.

At the trial the defendant was allowed to file two additional pleas which in substance alleged that prior to January 1, 1920, the said board had borrowed $5,500, which had not been repaid when the instant loan was made on December 20, 1929, as required by the statute. The record fails to show whether or not issue was joined on these two additional pleas.

The copy of the 'note' executed by the chairman and secretary of the board, together with the resolution of the board, signed by the members of the board, were attached as the cause of action or bill of particulars.

From the institution of this suit in 1925 until 1930 the litigation was conducted in Lafayette county before Judge M. F. Horne, one of the presiding judges of that circuit. November 30, 1930, the plaintiff made application for change of venue to Columbia county of the same circuit upon the ground that plaintiff feared that it could not obtain a fair trial in Lafayette county, in that the boundaries of the property taxable for county school purposes are coextensive with the county of Lafayette, and that taxpayers of the county would necessarily have to sit as jurors in the case, and therefore would be financially interested adversely to the plaintiff; that there was general anxiety throughout the state over high rates of taxation, and there were but few eligible to jury service in Lafayette county who are not taxpayers, and that such of those as might be summoned for jury duty, if not taxpayers, would by constant association entertain similar views, and thus prevent the plaintiff from securing a trial before disinterested and impartial jurors. It also appears that the case had been pending so long in that county that the interest on the loan would amount to nearly as much as the principal. The plaintiff is a nonresident of the county. Affidavits were filed in support of the application by citizens setting up substantially the above facts, and stating that they did not believe the plaintiff bank could obtain a fair trial in Lafayette county. Several affidavits were filed on behalf of the defendant by citizens of that county stating that plaintiff could obtain a fair and impartial trial in that county.

On November 13, 1930, the motion for change of venue was granted, and on April 28, 1931, when the case was called for trial before Judge Horne in Columbia county, the defendant moved to remand the case to Lafayette county, for trial upon the grounds that (1) defendant board had an absolute right to have the trial of the case of Lafayette county; (2) that no facts had been exhibited to the trial court upon which the court might have properly adjudicated the conclusion in favor of a change of venue. The motion to remand was denied, and, after allowing the two above additional pleas to be filed to the declaration by the defendant, the trial was had upon the issues which resulted in a directed verdict for $17,882.27 and cost in favor of the plaintiff, from which writ of error was duly taken to this court.

The first and second assignments of error are based upon the court's ruling (1) granting the motion for change of venue and (2) overruling the defendant's motion to remand the cause for trial to Lafayette county. They are here considered together.

If the jurisdiction of the circuit court of Columbia county did not attach by reason of the case not being removable, this point alone would, if decided in favor of defendant, effectually dispose of this appeal. Greeno v. Wilson, 27 Fla. 492, 8 So. 723; Tampa, etc., R. Co. v. Tampa S. R. Co., 30 Fla. 595, 11 So. 562, 17 L. R. A. 681.

The point first presented by plaintiff in error (defendant below) is that the language of section 4337, C. G. L. Florida 1927, giving the right to a change of venue to 'either party to a civil cause,' upon a proper showing, does not by the word 'party' apply to a county board of public instruction, upon the ground that the action is local and not transitory. This appears to be a new question in this state.

It is observed that section 4451, C. G. L. of Florida 1927, provides that 'no person interested in any issue to be tried' shall be a juror in any cause, but that no person shall be disqualified from sitting in a trial of any suit in which 'the State or any county or municipal corporation is a party by reason of the fact that such person is a * * * taxpayer within the State, or such county or municipal corporation.'

The leading thought conveyed by the above statute is that 'no person interested in any issue to be tried' in any cause shall be a juror therein, but the mere fact that a citizen of a county is 'a taxpayer' therein does not ipso facto 'disqualify' him from sitting as a juror in any suit in which the 'county' is a party by reason of 'interest' in the outcome of the suit. The statute does not undertake to state that a citizen may not be subject to 'challenge for cause' by reason of his being a taxpayer of the county, for his interest may be pronounced in some cases and only incidental in others. Section 4359, C. G. L. of Florida 1927 (second paragraph), specifically authorizes a ground of challenge 'for cause' if the juror has 'any interest' in the suit; also authorizes the trial court to excuse any juror who 'does not stand indifferent to the cause.'

In this connection defendant in error contends that a county board of public instruction does not occupy the same legal status as the board of county commissioners of a county which is a political subdivision of the state, nor that of a municipality which is an entirely separate corporate entity to that of any county of the state. The Constitution recognizes, but does not in terms provide for the creation of, a board of public instruction nor its status as a corporate entity. It is observed that section 9 of article 12 of the Constitution of Florida provides that all county school funds 'shall be disbursed' by the 'County Board of Public Instruction' solely for the support and maintenance of public free schools upon some declared principle to be determined by the Legislature.

The Legislature by section 523, C. G. L. of Florida 1927 constitutes 'the County Board of Public Instructions' of each county a body corporate and in that name may acquire and hold real and personal property' and perform other corporate acts for educational purposes.' It is therefore at least a quasi public corporation. In fact, in a...