City of Sarasota v. State Ex Rel. Evans

• Decision Date: 16 February 1937
• Court: Florida Supreme Court
• Parties: CITY OF SARASOTA et al. v. STATE ex rel. EVANS.

172 So. 728

127 Fla. 126

CITY OF SARASOTA et al. v. STATE ex rel. EVANS.

Florida Supreme Court

February 16, 1937

Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.

Mandamus proceeding by the State, on the relation of R. W. Evans against the City of Sarasota, a municipal corporation, and others. The Supreme Court (168 So. 417) affirmed a judgment of the circuit court granting a peremptory writ requiring the entire levy in one current year of a tax sufficient to pay the relator's past-due bonds, and mandate went down in due course. On motion of the City of Sarasota to recall such mandate and to amend it so as to permit the circuit court to consider the facts set forth in the motion and such other facts as might be pertinent thereto and thereupon grant relator spread of such levy over a period of years in putting into effect the Supreme Court's mandate, if the spread of such levy should appear to the circuit court to be appropriate. Order in accordance with opinion.

DAVIS J., dissenting.

COUNSEL Harrison E. Barringer, of Sarasota, and J Velma Keen, of Tallahassee, for plaintiffs in error.

Evans &amp Glenn, of Sarasota, for defendant in error.

OPINION

BROWN Justice.

During the preceding term of this court, the June term, 1936, this court affirmed (168 So. 417) the judgment of the circuit court for Sarasota county in mandamus proceeding wherein a peremptory writ had been granted requiring the entire levy in one current year of tax sufficient to pay the relator's past-due bonds, and mandate went down in due course. After the dismissal of an injunction which had been granted by the United States court, the relator applied to the circuit court for Sarasota county for an order putting into effect the mandate above mentioned. Shortly thereafter, on January 8, 1937, and before the expiration of the term of this court during which said mandate had issued, the City of Sarasota, respondent in the court below and plaintiff in error here, filed a motion in this court praying this court to recall the mandate heretofore issued, and, in the light of new circumstances therein set out, to amend said mandate so as to permit the lower court to consider the facts set forth in the motion and such other facts as might be pertinent thereto and thereupon grant relator spread of said levy over a period of years in putting into effect the mandate of this court if the spread of said levy appears to said circuit court to be appropriate under the circumstances.

This court made an order continuing and carrying over into this term the matter presented by said motion and within a few days after the beginning of this, the January term, 1937, of this court, plaintiff in error amended said motion by adding to the first paragraph thereof the additional allegation, 'that the bonds of the relator bear interest after maturity'; and by adding to the prayer the following words: 'Or to amend said mandate so as to permit the Circuit Court for Sarasota County, Florida, to consider and determine whether or not it shall issue the peremptory writ and stay its enforcement for a reasonable time until said Circuit Court can determine whether the refunding operations of City of Sarasota can be successfully carried out to the advantage of all concerned.'

Defendant in error filed a motion to dismiss the motion above referred to upon the ground that this court had lost jurisdiction and had no power to grant the prayer of the motion and also for the reason that the motion does not seek to remedy an error or correct a mistake in the mandate, but, on the contrary, seeks to inject new matter not heretofore considered, and for other reasons which might more properly be addressed to the lower court when and if application is made to said court in accordance with our disposition of this motion. Said motion to dismiss will be denied.

We do not deem it necessary to recall the mandate. We have the power, without recalling the mandate, to permit the circuit court for Sarasota county to entertain and determine whether or not it shall stay the enforcement of the peremptory writ awarded in accordance with the mandate from this court for a reasonable time until said circuit court can determine whether the refunding operations of the City of Sarasota can be successfully carried out to the advantage of all concerned, retaining jurisdiction on its docket for such further appropriate order in the premises as law and justice may require; such additional order or orders to be subject, of course, to review by this court if duly appealed from.

As was said by Mr. Justice Buford in the case of Baskin v. Klemm, 118 Fla. 657, 160 So. 509:

'The former writ of error in this case was to review a final judgment entered on the merits and, therefore, the opinion and judgment rendered by this court became a judgment of this court on the merits and the circuit court was without jurisdiction to change that judgment without first having permission of this court to so change or modify its judgment.

'And so it is that the judgment must be affirmed. In affirming the judgment, however, we do so without prejudice to the respondents making application for, and with permission to the court below to consider and make appropriate orders on, such application to spread the levy to be made over a term of two or more years. * * *

'That the court has the power to order a spread of the levy in a case of this kind is because the peremptory writ of mandamus partakes of the nature of both a judgment and an execution and it is elementary that except where precluded by statute or fixed legal principles to the contrary courts may reasonably control the execution of their respective judgments.'

We think the allegations of this motion filed by the City of Sarasota in this case brings it within the principles laid down in Baskin v. Klemm, supra, and State ex rel. Bottome v. City of St. Petersburg (Fla.) 170 So. 730, 731. As in the latter case, so here, the bonds sued on bear interest at the contract rate until paid, which means that such bonds bear interest after maturity as well as before. In this case it is alleged that:

'During the pendency of said proceedings in the United States District Court for the Southern District of Florida and since the dismissal thereof, City of Sarasota has made definite and considerable progress toward the readjustment of its bonded indebtedness and the refunding thereof; that the principal amount of the bonded indebtedness of City of Sarasota is in excess of $50,000,000 of which approximately one-half has matured; that interest in excess of $1,150,000.00 has accrued on said debt and remains unpaid; that in addition thereto judgments on bonds have been recovered against City of Sarasota aggregating approximately $300,000.00, on which interest in excess of $75,000.00 has accrued; that bonds of City of Sarasota of the principal amount of $282,000.00, and interest coupons of the approximate amount of $131,000.00 will mature during the fiscal year 1936-1937; that in addition thereto interest in the amount of approximately $150,000.00 will accrue during the fiscal year 1936-1937 on bonds which have heretofore matured; that the grand total of the defaulted debt of City of Sarasota, judgments and interest thereon plus the amount of bonds and interest which will mature during the fiscal year 1936-1937 is $4,576,000.00; that the assessed valuation of all taxable property within the limits of said City is approximately $10,200,000.00; that the bonded indebtedness of the County of Sarasota is approximately $5,250,000.00; and that property lying within the City of Sarasota is liable for better than 50% of the bonded indebtedness of said County; that the indebtedness of Board of Public Instruction of County of Sarasota on account of bonds of School District No. 1 is approximately $700,000.00 and property lying within the limits of said City of liable for approximately 90% of such indebtedness; that according to the State census of 1935 the population of City of Sarasota is approximately 9800 people; that the owners of approximately 80% of the bonded indebtedness of City of Sarasota have agreed to the refunding of such debt, under the terms of which agreement refunding bonds will be issued to mature thirty years from their date and to bear interest staring at one per centum per annum for the first four years and graduating upward until in the twentieth year, five percentum is reached; that the ability of the City to consummate such agreement depends almost entirely upon the acceptance of the terms of such agreement by the holders of its bonds who have not yet consented to such refunding and to the ability of City of Sarasota to maintain a reasonable rate of taxation; that in October 1936 City of Sarasota was ordered by peremptory writ of mandamus issued by the Circuit Court for Sarasota County to levy a special tax for the fiscal year 1936-1937 for the purpose of paying interest accruing during said fiscal year on the bonds of John S....