Markham v. State By and Through Dept. of Revenue, T--317

• Decision Date: 01 August 1974
• Docket Number: No. T--317,T--317
• Citation: 298 So.2d 210
• Parties: William MARKHAM, as Tax Assessor of Broward County, and Individually, Appellant, v. STATE of Florida, By and Through the DEPARTMENT OF REVENUE, Appellee.
• Court: Florida District Court of Appeals

Page 210

298 So.2d 210

William MARKHAM, as Tax Assessor of Broward County, and Individually, Appellant, v. STATE of Florida, By and Through the DEPARTMENT OF REVENUE, Appellee.

No. T--317.

District Court of Appeal of Florida, First District.

Aug. 1, 1974.

M. Stephen Turner of Thompson, Wadsworth & Messer, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen.; Winifred L. Wentworth and Stephen E. Mitchell, Asst. Attys. Gen., for appellee.

BOYER, Judge.

The plaintiff in the lower court appeals the final judgment entered in the Circuit Court of Leon County dismissing plaintiff's amended complaint with prejudice upon defendant's motion for judgment on the pleadings.

The essential facts are not in dispute. Following the November 1968 election, plaintiff's political opponent challenged the action of the Broward County Canvassing Board in canvassing and counting 602 absentee ballots which enabled the plaintiff to be certified as the winner in the election. Had the contested absentee ballots been rejected by the Canvassing Board the plaintiff's opponent would have prevailed in the election. Suit was commenced against the Canvassing Board and the Plaintiff in which the plaintiff sub judice was named as a party defendant in his individual capacity and not as Tax Assessor of Broward County, the office to which he had been elected by virtue of the contested absentee ballots. A motion for temporary injunction in that suit was successfully resisted by plaintiff sub judice and he assumed the duties of the office of Tax Assessor, compensating his attorneys with his own funds.

The election contest continued, however, challenging the valldity of the right of the plaintiff sub judice to hold office as tax assessor. New counsel was retained and in due course, after an interlocutory appeal and subsequent trial, the propriety of canvassing the contested absentee ballots was established, vindicating plaintiff's right to remain in office. The new counsel, retained by the plaintiff sub judice after assuming the duties of office, submitted a statement for fees in the amount of $3,430.85, the reasonableness and propriety of which is not questioned. The appellant here, plaintiff below, desired to pay said fees from funds budgeted in his office account for legal expenses; however, as a matter of routine precaution, he sought advice from the Attorney General on the propriety of such expenditures. The Attorney General ruled that no public uurpose was involved whereupon suit for declaratory judgment was instituted by the plaintiff, in his capacity as Tax Assessor of Broward County, seeking a declaration that his office was lawfully entitled to expend the sum of $3,430.85 for attorney's fees incurred in successfully defending the above mentioned law suit. The Circuit Judge held that the public interest was not sufficiently involved to justify the expenditure of public funds for such purpose.

We affirm.

It is a fundamental concept of the law in Florida and elsewhere that public funds may not be expended for other than public purposes. Public officers are, of course, entitled to a defense at the expense of the public in a law suit arising from the performance of the officer's Official duties and while serving a public purpose. Duplig v. City of South Daytona, Fla.App. (1st) 1967, 195 So.2d 581.

The fact that the appellant admittedly has sufficient funds available in his office budget to cover the subject attorney's fees is not controlling. The suit giving rise to the incurring of the attorney's fees was not against the appellant in his official capacity nor did it arise from a discharge of his official duties nor serve a public purpose. The suit was a pure and simple election contest relating to the validity of certain absentee votes. The questioned absentee votes were sufficient in number to affect the result of the election. Under the law of Florida as announced in cases too numerous to cite, had the contestant been successful in his attack upon the votes the appellant would have ceased to be tax assessor and his opponent would have taken office. The office, functions and duties of tax assessor would not have been in any manner altered. There would simply have been another man filling the position. The legal battle between the political contestants in the election contest was purely personal. Each wanted to be tax assessor of Broward County and the challenged absentee votes furnished the key to the door. This is the characteristic which distinguishes the case sub judice from those relied upon by the appellant in this appeal.

This case is controlled by the landmark case of the Supreme Court of Florida, Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890) wherein a tax payer sought a declaration that the Town Council was without authority to authorize the acting mayor to employ counsel to defend at the town's expense a suit which had been filed against the acting mayor by a defeated candidate to test the legality of the town election. There the Supreme Court said:

'* * * And now, admitting the right of corporations to sue and to defend suits, And to protect their officers in the lawful discharge of their duties, to be correct, still, where did the town council of Daytona derive their powers to appropriate money in the defense of contested elections in the result of which the corporation had no pecuniary interest whatever? Such power is not given in its charter, either expressly or by reasonable implication. These contests are personal, and The corporation can have no interest in the result, and an appropriation to pay any one of the parties the expenses he may be put to is without legal authority.

'An ordinance making an appropriation of the funds of a town or city, derived from taxation, for purposes wholly beyond the purview of municipal grant, is a wrongful appropriation of the funds held in trust for the tax-payers and people to pay the alimony and legitimate expenses of the town or city, and is, in short, Ultra vires, null and void. * * *' (Underlining added; 7 So. at page 644)

In Williams v. City of Miami, Sup.Ct.Fla.1949, 42 So.2d 582, a supersedeas bond was given by the affected commissioner to stay a court-ordered recall election. Judgment on the bond was eventually obtained and the commissioner sued the City of Miami for a decree of subrogation on the theory that the bond was the obligation of the city. In that case the Supreme Court said:

'* * * It is our view and conclusion that the supersedeas bond was not the obligation of the City of Miami. It was not interested in the result of the recall election, but such interest was Personal to and the law required that the costs should be paid by appellant and not by the taxpayers of the City of Miami. * * *' (Underlining added; 42 So.2d at page 582)

Appellant relies on City of North Miami Beach v. Estes, Fla.App. (3rd) 1968, 214 So.2d 644, writ of certiorari discharged in the Supreme Court in Estes v. City of North Miami Beach, Sup.Ct.Fla.1969, 227 So.2d 33. There, a losing candidate for councilman in a municipal election filed a suit in circuit court against Four of the seven members of the city council who were successful in said election. Plaintiff in that suit charged election law violations and sought certain relief, including a finding by the court that the defendants held office contrary to law, an order that they vacate their respective offices and an order enjoining them from performing any...