City of Hialeah v. State Ex Rel. Morris
| Citation | 183 So. 745,136 Fla. 498 |
| Parties | CITY OF HIALEAH et al. v. STATE ex rel. MORRIS. |
| Decision Date | 31 October 1938 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Dade County; H. F. Atkinson, Judge.
Mandamus proceeding by the State of Florida, on the relation of John E. Morris, against the City of Hialeah and others, to require respondents to pay past-due bonds and interest coupons issued by the city and held by relator. Final judgment was rendered for relator, a peremptory writ awarded, and respondents bring error.
Affirmed.
Martin F. Whelan, Jr., and Mitchell D. Price, and Charles W. Zaring, all of Miami, for plaintiffs in error.
Burwell Thornton, of Clearwater, for defendant in error.
An alternative writ of mandamus was issued herein alleging in effect that the relator owned described past-due bonds and interest coupons issued by the City of Hialeah and showing the amount due and payable.
Respondents filed a motion to quash the alternative writ, which was denied. The respondents failed to file any return or answer to the alternative writ, so a final judgment was rendered and a peremptory writ awarded. Respondents took writ of error and assign as errors the denial of the motion to quash, the entering of a final judgment, and the awarding of the peremptory writ.
If there was no error in denying the motion to quash, then it was not erro to render the final judgment. If the motion to quash was improperly denied the judgment must be reversed. So it is necessary to consider only one assignment of error namely, whether or not the motion to quash was properly denied.
According to the weight of authority the alternative writ in mandamus proceedings must allege that there are funds on hand which may lawfully be applied to the payment of the claim alleged to be due and payable. 38 C.J., Mandamus, Sec. 591, Note 79(d), p. 877; Meyer v City & County of San Francisco, 150 Cal. 131, 88 P. 722, 10 L.R.A.,N.S., 110; People ex rel. Woodbury et al. v. Pavey, 137 Ill. 585, 27 N.E. 697. In accordance with this rule the alternative writ alleges: '* * * that the City of Hialeah, a municipal corporation as aforesaid, has on hand available and applicable funds out of which such payment can be made.'
The first question raised by respondents in their brief is whether or not the above allegation alleges a duty upon behalf of respondents to pay relator's bonds and coupons without further alleging that the moneys were collected and held for debt service, and that the moneys are unimpounded. The respondents base their contention on Section 46 of the Charter of the City of Hialeah (Chapter 11516, Acts of 1925, Ex.Sess., Laws of Florida) which provides that before the City could apply money for the purpose of paying interest on bonds and other indebtedness of the City an assessment must be made for that express purpose, and in order to pay bonds the City must have provided a sinking fund and the money to be so used must be in that sinking fund.
If there were sufficient funds on hand collected under an assessment made for the purpose of raising money for the payment of interest on the bonds and if there were sufficient funds in a sinking fund or debt service fund for the payment of bonds, those moneys would be available and applicable funds of which payment could be made. Instead of alleging that an assessment had been made and money collected and placed in the funds out of which the interest coupons and bonds were to be paid, the relator alleged the ultimate fact that the City has on hand available and applicable funds out of which such payment can be made. The motion to quash admits well pleaded allegations of the alternative writ.
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...and plainly pronounced in clear unequivocal terms. Ex parte Amos, 93 Fla. 5, 112 So. 289; Bryan v. Landis, supra; Hialeah v. State, 136 Fla. 498, 183 So. 745, 6 Fla.Jur., Common & Civil Laws, § 8. Inasmuch as that portion of the statute pertaining to time of redemption does not clearly chan......
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...and plainly pronounced in clear unequivocal terms. Ex parte Amos, 93 Fla. 5, 112 So. 289; Bryan v. Landis, supra; Hialeah v. State, 136 Fla. 498, 183 So. 745, 6 Fla.Jur., Common & Civil Law § 8. Inasmuch as that portion of the statute pertaining to time of redemption does not clearly change......