Herbert v. City of Daytona Beach

• Decision Date: 15 October 1935
• Citation: 163 So. 565,121 Fla. 212
• Parties: HERBERT v. CITY OF DAYTONA BEACH.
• Court: Florida Supreme Court

163 So. 565

121 Fla. 212

HERBERT v. CITY OF DAYTONA BEACH.

Florida Supreme Court

October 15, 1935

En Banc.

Taxpayer's suit by John T. Herbert against the City of Daytona Beach, a municipal corporation of Volusia county, Fla. From the decree, the plaintiff appeals.

Affirmed. Appeal from Circuit Court, Volusia County Frederick, Judge.

COUNSEL

H. E Couchman, of Daytona Beach, for appellant.

Leon J C. Harton, of Daytona Beach, for appellee.

OPINION

DAVIS Justice.

The facts in this case may be succinctly stated as follows:

On October 5, 1935, plaintiff, John T. Herbert, filed in the circuit court of Volusia county, Fla., a taxpayer's suit on behalf of himself and all other taxpayers and inhabitants of said city. He alleged that the city had, prior to June 17 1934, proposed to issue certain water revenue certificates in the amount of $280,000; that authority for the issuance of such certificates was contained in section 146 of the city charter, known as chapter 10466, Special Acts of 1925; that on October 17, 1934, said city filed a petition in the circuit court of Volusia county, Fla., praying for the validation of said certificates; that on November 21, 1934, said circuit court entered a judgment and decree validating said certificates; that on appeal the Supreme Court on December 28, 1934, affirmed the decree validating the proposed issue of said water revenue certificates; that thereafter on September 30, 1935, the defendant city adopted a resolution authorizing the delivery to the United States of America Public Works Administration $150,000 worth of said certificates pursuant to a certain understanding or arrangement between said city and the United States of America or one of its agencies; that such delivery was to be made pursuant to a certain 'arrangement or understanding' contained in a certain writing.

The bill further alleged that on September 28, 1935, the certificates were 'executed' in the sense that on that date they were 'signed and issued.' It averred further that unless enjoined, defendant city would forthwith deliver said certificates to the United States of America or one of its agencies in compliance with the aforementioned arrangement or understanding.

Thereupon it was set forth in the bill that the Legislature of the state of Florida enacted a general law applicable to all municipalities throughout the state whereby provision was made for the issuance by any municipality 'mortgage revenue certificates or debentures' upon the compliance with certain requirements stated in said act, said act being known as Senate Bill No. 515, chapter 17118 (No. 347), Acts of 1935 (Volume 1, General Laws 1935, page 979). The bill also stated numerous conditions specified in section 5 of said act and further alleged noncompliance with such provision on the part of defendant.

Because of such noncompliance, the bill alleged that the 'execution,' 'signing,' and 'issuance' of said certificates on September 28 1935, was ultra vires, and beyond the lawful authority of said city; that the delivery of the certificates will obligate defendant city to comply with certain conditions stated in the certificates and stated in the aforementioned arrangement or understanding; that such compliance will result in the doing of ultra vires and unauthorized acts throughout the period from the date of delivery continuous to and including the year 1935; that compliance with said conditions will result in increased taxation to plaintiff and other taxpayers in the city and will also cause an increase in the rates, prices, and compensation required to be paid by the plaintiff and other inhabitants of the city for water therein; and that thereby plaintiff and all ...