King v. United States

• Citation: 100 F.2d 797
• Decision Date: 24 January 1939
• Docket Number: No. 8849.,8849.
• Parties: KING et al. v. UNITED STATES ex rel. TIEDTKE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

100 F.2d 797 (1939)

KING et al. v. UNITED STATES ex rel. TIEDTKE et al.

No. 8849.

Circuit Court of Appeals, Fifth Circuit.

January 24, 1939.

D. C. Hull, Erskine W. Landis, and Francis P. Whitehair, all of Deland, Fla., and W. W. Whitehurst, of Wauchula, Fla., for appellants.

W. D. Bell, of Arcadia, Fla., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellees are holders of a judgment against Hardee County, Florida, on bonds issued by it, for $10,740.50, and against Hardee County on behalf of Special Road and Bridge District No. 7, on bonds issued by the District, for $24,676.66. As such holders they sued appellants for and obtained a final judgment and order for peremptory writ of mandamus, directing the levy and collection in and for the year 1938 of a millage tax, sufficient, if collected, to pay their judgments. They did not, however, obtain this except over appellants' vigorous protest and complaint, that the heavily over-bonded condition of the County and the District justified, indeed required, a stay of the writ pending the refunding efforts of the County and the District, or at least, that the levy should be spread over a reasonable number of years. Appellants are therefore here seeking the reversal of the judgment, as entered in abuse of a reasonable discretion, or, if that may not be had, its modification, to spread the collection of the ordered levies over a reasonable period of years.

In support of their claim on the facts they point out the greatly embarrassed financial condition of the County and the District, with a large part of the bonds of both in default and, as to each, with debts greatly in excess of its valuations. They point out too, what appellees admit, that there is pending an application of the District for relief under the Municipal Bankruptcy Act, 11 U.S.C.A. § 301 et seq., and that as to the County, which is unable to sue for bankruptcy relief, there are negotiations on foot for a reasonable refunding arrangement. While in its support in law, insisting that legal in form, the remedy of mandamus is equitable in its nature, and will be granted, withheld, or tempered, according to the equitable circumstances in each case, they cite United States v. Dern, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250; State ex rel. Bottome v. City of St. Petersburg, 126 Fla. 233, 170 So. 730; City of Sarasota v. State, 127 Fla. 126, 172 So. 728; City of Asbury Park v. Christmas, 3 Cir., 78 F.2d 1003; United States ex rel. Baer v....