Herbert v. Thursby

• Decision Date: 20 November 1933
• Parties: HERBERT v. THURSBY et al.
• Court: Florida Supreme Court

151 So. 385

112 Fla. 826

HERBERT v. THURSBY et al.

Florida Supreme Court

November 20, 1933

Rehearing Denied Dec. 20, 1933.

En Banc.

Bill of complaint by John T. Herbert against Ben D. Thursby and others, constituting the Board of County Commissioners of Volusia County, Fla., and Volusia County, a political subdivision of the state of Florida. From a decree dismissing the bill of complaint, complainant appeals.

Reversed. Appeal from Circuit Court, Volusia County; M G. Rowe, Judge.

COUNSEL

H. E Couchman and Leon J. C. Harton, both of Daytona Beach, for appellant.

W. J Gardiner, of Daytona Beach, for appellees.

OPINION

WHITFIELD Justice.

In a bill of complaint brought by a citizen taxpayer of Volusia county, Fla., it is in effect alleged that the county commissioners of the courty, in order to secure an armory for appropriate use in the county, propose to borrow from the authorities of the United States government $52,500 to be used in providing such armory;

'That the County of Volusia now owns and has owned for many years last past the following described property located in Volusia County, Florida, to-wit:

'The West Seventy-five (75) feet of Lot One (1), Block Nine (9) according to Hodgman's Map of Daytona, of record in the Public Records of Volusia County, Florida.

'That the said property is now vacant and unused property, but was until about seven years since used as and for an Armory site; that officers and members of Battery C, 265th Coast Artillery, Florida National Guard, are now attempting to have the City of Daytona Beach, a municipal corporation of the State of Florida, convey to Volusia County and/or to the United States of America a fraction or portion of the City Island for a site for the construction of said Armory. That the City Island is an island located in the Halifax River, a river that divides the said City of Daytona Beach, and is owned by the said City of Daytona Beach; that if the said portion or fraction of the said City Island is conveyed by the said City of Daytona Beach to the County of Volusia, then your Plaintiff believes and so alleges that the said County of Volusia will convey the same to the Federal Emergency Administration of Public Works and/or the United States of America for the purpose herein alleged; that the members of the City Commission of the said City of Daytona Beach are now favorably considering the request of the said officers and members of said Battery C, 265th Coast Artillery, Florida National Guard, to convey a fraction or portion of the said City Island either to the said County of Volusia or to the Federal Emergency Administration of Public Works and/or the United States of America for the purposes herein alleged; that the Board of County Commissioners of Volusia County, Florida, intended and will evidence said loan, if granted, by a note or indenture of indebtedness obligating Volusia County to repay said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars to the Federal Emergency Administration of Public Works and/or the United States of America with interest thereon at the rate of four per cent per annum until paid, or in lieu thereof deed to the Federal Emergency Administration of Public Works and/or the United States of America the said West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona, of record in the Public Records of Volusia County, Florida, or said fraction or portion of the said City Island as and for an armory site for the construction of said Armory by the said Federal Emergency Administration of Public Works and/or the United States of America. That if the said West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona, of record in the Public Records of Volusia County, Florida, and/or the said fraction or portion of the said City Island is conveyed to the Federal Emergency Administration of Public Works and/or the United States of America and an Armory constructed thereon in accordance with the terms and provisions of said application, then and in that event said Volusia County by and through its Board of County Commissioners will lease from the Federal Emergency Administration of Public Works and/or the United States of America such Armory and the land upon which it is constructed as and for an Armory for the said Battery C, 265th Coast Artillery Florida National Guard. That the said lease would have to be executed and the terms and provisions thereof be in accordance with the terms and provisions of the said National Industrial Recovery Act (48 Stat. 195), and would provide for a rental to be paid for such Armory by the County of Volusia to the said Federal Emergency Administration of Public Works and/or the United States of America over a period of not more than thirty years. That the said rental for the said Armory would be paid in monthly or annual installments until said total sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars was paid when the said Federal Emergency Administration of Public Works and/or the United States of America would convey the said Armory and the land upon which it was constructed to the County of Volusia without any further payment of money or consideration. That the Board of County Commissioners of Volusia County, Florida, will either loan or borrow the said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars from the Federal Emergency Administration of Public Works and/or the United States of America and evidence said loan by the execution and delivery of note and/or other evidence of indebtedness, or in lieu thereof convey the said West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona of record in the Public Records of Volusia County, Florida, or the said fraction or portion of the said City Island to the Federal Emergency Administration of Public Works and/or the United States of America and then enter into an indenture of lease providing for the leasing of either of said pieces of property after the construction of the said Armory thereon and agreeing to pay therefor an annual rental over a period of years, the total rental to be the sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars, plus interest at the rate of four per cent per annum; that the action of the said Board of County Commissioners of Volusia County, Florida, as herein alleged is to be taken and had pursuant to the said National Industrial Recovery Act, and that the said Board of County Commissioners of Volusia County, Florida, will execute and deliver any and all necessary deeds and/or leases and/or indentures necessary and requisite to secure the said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars with which to construct the said Armory

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