Commissioners of Duval County v. City of Jacksonville

• Citation: 36 Fla. 196,18 So. 339
• Parties: COMMISSIONERS OF DUVAL COUNTY v. CITY OF JACKSONVILLE.
• Decision Date: 11 October 1895
• Court: Florida Supreme Court

18 So. 339

36 Fla. 196

COMMISSIONERS OF DUVAL COUNTY v. CITY OF JACKSONVILLE.

Florida Supreme Court

October 11, 1895

Error to circuit court, Duval county; R. M. Call, Judge.

Action for mandamus by the city of Jacksonville against the county commissioners of Duval county. Plaintiff had judgment, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. Under section 5, art. 9, of the constitution, the legislature cannot authorize counties to levy taxes for any other than county purposes; nor can counties be authorized to devote money so raised to any other than such purposes.

2. The authorities have formulated no generally accepted definition of a county purpose, but leave each case involving the question to be decided as it may arise.

3. The legislature can exercise plenary control over public highways, whether they be public county roads or streets in cities and towns.

4. If the courts entertain a well-founded or reasonable doubt as to the constitutionality of an act, it should, in deference to the legislative judgment, be upheld.

5. The proviso to section 17, c. 4014, Laws 1891, directing that one-half of the amount of the special road tax authorized by the act to be levied by the county commissioners and realized from the taxable property in incorporated cities and towns be turned over to the municipal authorities, to be used in repairing, working, improving, and laying out the streets thereof, as may be prescribed by the ordinances of the said cities and towns, is not in conflict with section 5, art. 9 of the constitution, as being a diversion of county revenues to other than county purposes.

6. Neither is said proviso in conflict with section 16, art. 3 of the constitution, as not being expressed in the title of said chapter 4014, Laws 1891.

7. When a matter is so closely connected with the subject of the act as to create a doubt whether it is not included within it the courts will not consider the question whether the legislative action upon it violates the constitutional prohibition relating to the titles of laws.

8. A street is a public road or way in a city, town, or village. All streets are highways, but all highways are not necessarily streets.

9. It is not required that the title of an act should give a synopsis of all the means by which the object of a law is to be accomplished in the provisions in its body. The title may be general, and, so long as the generality of the subject expressed therein is not employed as a guise to conceal the real object of the law, or some provision therein, it will not be objectionable.

10. The turning over of one-half of the money raised from the taxable property in incorporated cities and towns under section 17 c. 4014, Laws 1891, does not destroy the equality or uniformity of the county assessment made by the county commissioners.

11. By the seventeenth section of chapter 4014, the public road tax, when collected, is required to be paid into the county treasury as a special fund to be expended under the direction of the county commissioners solely for the purpose mentioned in the act; and under sections 584 and 585, Rev. St., no money can be drawn from the county treasury except upon warrant drawn by order of the county commissioners. Under the statutory provisions mentioned, it is clearly the duty of the county commissioners to turn over to municipalities their proportional part of the road tax when collected and paid into the county treasury, by issuing a warrant for the payment of the same.

12. Mandamus is a remedy resting in the judicial discretion of the court, and the peremptory writ will not ordinarily be awarded commanding an officer to do what is not within his power to do, and, although he may have put it out of his power to perform his duty, and may be liable in damages therefor, still, where he cannot perform the act, and this is clear to the court, the peremptory writ will not ordinarily be issued against him.

COUNSEL

Fleming & Fleming, for plaintiffs in error.

Walker & L'Engle, for defendant in error.

This is a proceeding by mandamus, instituted by the city of Jacksonville against the county commissioners of Duval county, to require them to turn over to the municipal authorities of said city one-half of the amount realized from a special tax for public roads and bridges levied and collected on the property within the corporate limits of said city, under section 17, c. 4014, Laws 1891.

It is alleged in the alternative writ: That the board of county commissioners of Duval county deemed it advisable and for the public good, and at the times for levying taxes for county purposes for the years 1891, 1892, 1893, and 1894 respectively, levied, by virtue of section 17, c. 4014, Laws Fla., a special tax for public roads and bridges on all the real and personal property in Duval county subject to taxation, and which was assessed and collected as other taxes of the county, and paid into the county treasury as a special fund, as required by the law. That a large amount of said special tax levied for the years mentioned, and collected and paid into the county treasury, amounting to more than $19,000, was assessed, levied, and collected on property in the city of Jacksonville. Exactly how much was so realized the city was not able to say, because of the fact that all books and papers containing such information were in the custody and control of the county officials of said county; but the city shows that there had been realized from such source for the years mentioned the sum of $18,050.76, as appeared by a sworn abstract made from the tax collector's books by the tax collector, and attached as an exhibit. It is further averred that the exact amount realized from such special tax on the property in the city of Jacksonville, and required by the act mentioned to be turned over to her municipal authorities, was or should be known by the county commissioners, and they could ascertain correctly from books and papers in their possession the exact amount so realized; that of the amount of money realized from said special tax on property in the city of Jacksonville the sum of $2,709.05 was, by warrant dated June 1, 1892, turned over to the city by order of the board of county commissioners of said county, and no other of said moneys so realized had been turned over to said city as required by law; that the municipal authorities had caused the matter to be called to the attention of the said county commissioners, and had demanded that the money due the city from the said taxes be turned over to the municipal authorities, and that the commissioners account to the city for one-half of the amount so realized from property in the city, but that they had refused to do so. It was also alleged that the city was in urgent need of the moneys so due, to be used in the repairing, working, improving, and laying out the streets of the city, as prescribed by ordinances.

A motion was made to quash the alternative writ, on the grounds, among others: That it was not the duty of respondents to turn over to relator any portion of the taxes collected for public roads and bridges. Relator's claim was an unliquidated demand. That it did not appear that respondents had ever been furnished with, or were in possession of, information as to the amount of alleged taxes collected for roads and bridges, so as to enable them to turn over any amount to relator. The writ was otherwise uncertain, evasive, and insufficient. That section 17, c. 4014, is in violation of section 5, art. 9, of the constitution. That section 17, c. 4014, is in violation of the constitution. That the proviso to section 17, c. 4014, was inoperative and void under the constitution.

The motion was overruled, and respondents answered, admitting that the board of county commissioners for said county levied a tax for the years mentioned for public roads and bridges on the property of the county subject to taxation, under section 17, c. 4014, Laws Fla., but it is denied that the statement in the alternative writ as to the amount of the taxes collected on the property within the city was correct, and the amount collected for the years 1891, 1892, and 1893 is stated to be $16,911.58, and, deducting from this amount what had been paid, left $5,746.74. Respondents had made every effort to get the amount collected for the year 1894, but had been unable to do so, on account of the usurpation of the office of tax collector by a party named, and the delay in paying taxes, and the confusion in reference to the same in consequence of the usurpation of said office. Respondents further aver that no demand was made upon them for any proportion of the taxes collected for public roads and bridges, except that at a meeting of the board in January, 1895, the city recorder sent to the board a statement claiming the amount of the levy for roads and bridges on property within the city limits for the years 1891, 1892, and 1893, and requested payment of one-half of such sum to the city; that such statement failed to show the amount of such taxes collected, and was returned to the recorder for correction; and, no demand except as stated having been made upon respondents, and the whole amount collected for roads and bridges being required for the purpose of keeping the roads and bridges of the county in good repair, especially by reason of the damage done to them by the severe storms of 1893 and 1894, said funds were used by the county for that purpose, except $758.91, then in the hands of the treasurer to the credit of the road and bridge fund of the county.

As a plea to so much of the writ as involves the taxes for 1892 it is alleged that the claim was not presented to the board of county commissioners within...