City of Winter Haven v. State Ex Rel. Baynes

• Decision Date: 16 April 1934
• Citation: 154 So. 879,114 Fla. 527
• Parties: CITY OF WINTER HAVEN et al. v. STATE ex rel. BAYNES.
• Court: Florida Supreme Court

154 So. 879

114 Fla. 527

CITY OF WINTER HAVEN et al. v. STATE ex rel. BAYNES.

Florida Supreme Court, Division A.

April 16, 1934

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Proceeding by the State, on the relation of E. M. Baynes, against the City of Winter Haven and others for mandamus. To review the judgment awarding a peremptory writ, defendants bring error.

Reversed and remanded, with directions.

COUNSEL Henry L. Jollay, of Winter Haven, for plaintiffs in error.

Ernest C. Wimberly, of Winter Haven, for defendant in error.

OPINION

DAVIS, Chief Justice.

In this case the command of an alternative writ of mandamus required the city of Winter Haven, through the respondents its designated officials, to pay instanter certain matured bonds held by relator, which became due April 15, 1931. The writ also embraced a separate command to the effect that, in the event there were not sufficient sums of money on hand in the interest or sinking fund with which to pay relator's bonds, respondents be required to levy and collect a direct tax upon all the taxable property within the corporate limits of the city, sufficient to fully pay relator's principal and interest. The alternative writ also commanded the respondents to refrain from disbursing any amounts levied and collected from interest or sinking funds other than as in the amended alternative writ required.

Motion to quash the amended alternative writ was denied. Thereafter a peremptory writ was ordered, a return to the amended alternative writ setting up certain alleged defenses, to the contrary notwithstanding. By writ of error to the judgment awarding the peremptory writ, there is before this court for review the propriety of the peremptory writ.

The judgment should be reversed on the authority of McNally v. State ex rel. Bond Realization Corporation (Fla.) 150 So. 751, wherein it was held improper to join in a single writ of mandamus a command to disburse available funds on hand and thereafter to levy a special tax to pay the same bonds and coupons.

Where tax moneys have been duly raised pursuant to statutes under which municipal bonds were issued as general obligations, in order to provide a special fund for the payment of such bonds and coupons when due, the holder of such bonds and coupons acquires a vested and irrevocable interest in the fund once it is so raised, and not even the Legislature has the power to impair or destroy the security holder's vested right to reach it by mandamus, unless it furnishes or provides some adequate source of payment from other funds. See State ex rel. Buckwalter v. City of Lakeland (Fla.) 150 So. 508; State ex rel. Sovereign Camp, W O. W. v. Halifax Hospital Dist. (Fla.) 150 So. 517. In such cases the 'first come first served' rule determines priorities where mandamus is resorted to for the purpose of enforcing payment out of an existing fund in hand that is inadequate to pay all. State ex rel. DuPont Ball, Inc., v. Livingston, 104 Fla. 33, 139 So. 360; State ex rel. Suwannee River Bridge Co. v. State Board of Administration (Fla.) 154 So. 871 decided at the present term.

But where bonds have been issued as general obligations, under statutes pledging an agreement on the part of the issuing municipality to exert the taxing power vested in it as a municipality, to a sufficient extent to provide payment of its debts and obligations when and as due, the writ of mandamus is capable of being...