City of Safety Harbor v. State Ex Rel. Smith

• Decision Date: 21 February 1939
• Citation: 187 So. 173,136 Fla. 636
• Parties: CITY OF SAFETY HARBOR et al. v. STATE ex rel. SMITH.
• Court: Florida Supreme Court

187 So. 173

136 Fla. 636

CITY OF SAFETY HARBOR et al. v. STATE ex rel. SMITH.

Florida Supreme Court, Division B.

February 21, 1939

Rehearing Denied March 10, 1939.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Mandamus proceeding by the State of Florida, on the relation of Evelyn V. Smith, against the City of Safety Harbor and others to compel the levy of a tax by the city sufficient to pay an amount due to the relator on past due interest coupons on certain bonds of the city. To review a judgment awarding peremptory writ of mandamus, defendants bring error.

Affirmed with directions.

COUNSEL Ray C. Brown, of Tampa, for plaintiffs in error.

Baker &amp Ulmer, of Clearwater, for defendant in error.

OPINION

BROWN Justice.

This writ of error brings before us for review a judgment awarding peremptory writ of mandamus, upon which the peremptory writ was issued, but the execution of the judgment and the enforcement of the peremptory writ was stayed pending these appellate proceedings by a supersedeas bond. The judgment which was rendered August 14, 1937, ordered the levy of a tax by the defendant city for the tax year 1937-1938 sufficient to pay the amount which the ocurt found to be due to the relator on past due interest coupons on certain bonds of the City of Safety Harbor held by the relator, amounting to something over $6000.

The respondent city showed by its answer that it was in a deplorable condition financially, and that it was burdened with a very heavy bonded indebtedness and handicapped by a very general delinquency in the payment of taxes. It recited efforts to refund its bonded indebtedness in the past and referred to the fact that there was then pending in Congress an act to amend the Federal Municipal Bankruptcy act, under which, if passed, the city hoped to arrive at a composition with its creditors which would solve its financial problems. However, the answer did not show the pendency at the time of any definite plan for refunding the city's bonded indebtedness. The contention of the plaintiff in error here that the circuit court abused its discretion in rendering the judgment and granting the peremptory writ, upon the authority of State ex rel. Bottome v. City of St Petersburg, 126 Fla. 233, 170 So. 730, is not well founded. In that case the court held that the enforcement of the peremptory writ should have been stayed for a reasonable time until the court could determine whether the existing refunding operations of the city, which had already been contracted for and begun, could be carried out to the advantage of all concerned. It is true that we have held that while mandamus is a common law remedy, the granting of the writ is governed by equitable principles, and that the enforcement of the writ if granted may be modified or postponed in particular circumstances when the carrying it out according to the strict letter of the command would be of no great advantage to the relator but would tend to work a serious public mischief, or result in irreparable injury or embarrassment in the orderly functioning of the government with regard to its financial affairs, unless so restricted.

In view of the facts existing at the time the judgment awarding the peremptory writ was rendered and the peremptory writ issued, as shown by the pleadings in the case below, we do not consider that this court would be authorized to hold that any reversible error was committed by the Circuit Court.

On February 2, 1939, a motion was filed in this court stating that since the writ of error in this case was sued out Congress had enacted the amended bankruptcy act and the city of Safety Harbor had filed its petition in the United States District Court for the Southern District of Florida for the purpose of obtaining the benefits of said act; that the relator in the court below, defendant in error here, Evelyn V. Smith, was listed as a creditor of the city and interest coupons owned by her were listed as securities held by her as affected by the plan of composition proposed by said city to its creditors; that she was given legal notice of the filing of the petition as required by the act and that she did not file any answer to the petition controverting any of the material allegations therein or setting up any objections thereto. That on June 10, 1938, the Federal District Court made and entered its interlocutory decree adjudicating that the plan of composition was fair, equitable, and for the best interests of the creditors; that it had been accepted and approved as required by the act, and that the city was authorized to take all action necessary to carry out the plan, which provided for taking care of the relator's interest coupons. That thereafter on December 13, 1938, the United States District Court entered its final decree, a certified copy of which is attached to the motion, and that no appeal has been taken therefrom within the time in which an appeal could be taken. That thereby the city was discharged from all its debt and liabilities dealt with in the plan of composition, including its debt to the defendant in error, and that said plan of...