First Nat. Bank v. Board of Public Instruction for Lafayette County

• Decision Date: 24 January 1927
• Citation: 111 So. 521,93 Fla. 182
• Parties: FIRST NAT. BANK OF GAINESVILLE v. BOARD OF PUBLIC INSTRUCTION FOR LAFAYETTE COUNTY.
• Court: Florida Supreme Court

111 So. 521

93 Fla. 182

FIRST NAT. BANK OF GAINESVILLE v. BOARD OF PUBLIC INSTRUCTION FOR LAFAYETTE COUNTY.

Florida Supreme Court, Division B.

January 24, 1927

Rehearing Denied March 1, 1927.

Error to Circuit Court, Lafayette County; M. F. Horne, Judge.

Action by the First National Bank of Gainesville against the Board of Public Instruction for the County of Lafayette. Judgment of dismissal, and plaintiff brings error.

Reversed.

Ellis C.J., dissenting.

(Syllabus by the Court.)

On Petition for Rehearing.

COUNSEL

Hampton & Hampton, of Gainesville, for plaintiff in error.

McCollum & Howell, of Jacksonville, for defendant in error.

OPINION

BUFORD J.

In this case suit was brought by the plaintiff in error against the defendant in error in the circuit court of Lafayette county in an action at law claiming damages in the sum of $20,000. Service of summons was made by the sheriff on the chairman of the board of public instruction of Lafayette county. Special appearance was filed for the purpose of making motion to quash the sheriff's return, and also for the purpose of making motion to quash the summons. The motion to quash the sheriff's return was as follows:

'Comes now the above-named board of public instruction for the county of Lafayette, state of Florida, by its undersigned attorneys, and, pursuant to its special appearance herein filed herewith, and not otherwise, respectfully moves the court to quash the return of the sheriff of Lafayette county, Fla., upon the summons issued on June 22, 1925, in the above-entitled cause; and, as the grounds of this motion, the said board assigns the following:

'(1) Said return shows no valid or effectual service of said summons, sufficient in law to enable this court to acquire jurisdiction of the corporate persons of the board of public instruction for the county of Lafayette, state of Florida.

'(2) Said return affirmatively shows that it was not served upon any officer, agent, or employee of the said board of public instruction for the county of Lafayette, state of Florida, service upon whom is binding in law upon the said board.

'(3) Service of initial process in a suit in Florida can be, and must be, made only in pusuance of statutory provision therefor; and there is no statute of Florida authorizing or permitting service of a summons ad respondendum directed to a board of public instruction to be served upon the chairman of the said board.'

Motion to quash the summons was as follows:

'Comes now the above-named board of public instruction for the county of Lafayette, state of Florida, by its undersigned attorneys, and pursuant to its special appearance herein filed herewith, and not otherwise, respectfully moves the court to quash the summons issued in the above-entitled cause on the 22d day of June, 1925; and as the grounds of this motion the said board assigns the following:

'(1) The right to sue a governmental agency of the state is dependent upon permissive legislative action in that behalf; and there is no statute in Florida authorizing or permitting suit to be brought against a county board of public instruction.

'(2) Under the Constitution and laws of Florida, school funds of a county, under the jurisdiction and control of the county board of public instruction for such county, are required to be expended only for the maintenance and support of free public schools within the county; and the record in the above-entitled cause does not show that the $20,000 damages claimed by the plaintiff against the board of public instruction for the county of Lafayette, state of Florida, is necessarily referable to, or connected with, the maintenance and support of free public schools within Lafayette county.'

We hold that, under the authority of the opinions in the case of Scarlett v. Hicks, 13 Fla. 326; Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 So. 670; Dudley & Jennings v. White, 44 Fla. 264, 31 So. 830; Ray v. Trice, Receiver, 48 Fla. 297, 37 So. 582, by the filing of the motion to quash the summons the defendant in effect entered a general appearance, and thereby waived the necessity of any further service than that which had been perfected. Otherwise the order of the court sustaining the motion to quash the return made by the sheriff would be sustained upon the ground that, as there is no statute providing the method for making service of process on the board of public instruction of a county, service of such process should be made upon each member of such board. Motion to quash summons was granted, and the case dismissed at the cost of the plaintiff, from which judgment writ of error was sued out.

There were six assignments of error, all of which are addressed to the action of the court in sustaining the motion to quash the return of the sheriff and the motion to quash the summons. The question as to the action of the court in granting the motion to quash the return of the sheriff may be considered disposed of by what has been already said in regard thereto. The only other question which this court is now asked to determine is whether or not suit may be maintained in this state against a board of public instruction of a county.

Section 4 of the Declaration of Rights of the Constitution of Florida provides:

'All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.'

Section 1, art. 12, of the Constitution of the state of Florida, provides:

'The Legislature shall provide for a uniform system of public free schools, and shall provide for the liberal maintenance of the same.'

The Legislature of the state of Florida, pursuant to this mandate of the Constitution, provides for a board of public instruction for each county in the state. Section 441, Revised General Statutes of Florida, provides that such board shall consist of not more than three members.

Section 447 constitutes each of such boards a body corporate by the name of the board of public instruction for the county of -----, state of Florida, and provides that in that name it may acquire and hold real and personal property, receive bequests and donations, and perform other corporate acts for educational purposes.

Section 454 authorizes such boards to obtain possession of, accept and hold under proper title as a corporation, all property possessed, acquired, or held by the county for educational purposes, and to manage and dispose of same for the best interests of education; it being provided that such authority should not prevent special tax school districts from holding school property.

Section 458 provides, in part:

'That when there is no money in the county school fund applicable to be payment of outstanding school warrants issued by any county board of public instruction in this state, the county boards of public instruction of the several counties in this state are hereby authorized and empowered to borrow money at a rate of interest not to exceed eight per cent. per annum, for the purpose of paying all such outstanding warrants, and for the further purpose of paying any and all legitimate expenses incurred in operating the schools of said county.'

Thus it is we find that the Legislature of Florida pursuant to constitutional authority, created a corporation, a board of public instruction for the county, to supervise and to have the management of the public free schools within the county; that it authorized that corporation to possess and hold property in the county for educational purposes, to receive and appropriate money for educational purposes, and to borrow money at a rate of interest not to exceed 8 per cent. for the purpose of paying outstanding warrants, and for the purpose of paying any and all legitimate expenses incurred in operating the schools of the county. There are certain restrictions and limitations placed upon the borrowing capacity of such corporations, but these questions are not yet raised in the present case. It is certain that this corporation may contract to buy schoolhouse sites; that it may enter...