R. L. Bernardo & Sons, Inc. v. Duncan
| Decision Date | 04 December 1962 |
| Docket Number | No. C-271,C-271 |
| Citation | 147 So.2d 542 |
| Court | Florida District Court of Appeals |
| Parties | R. L. BERNARDO & SONS, INC., Appellant, v. Earl R. DUNCAN and City of Panama City, a municipal corporation, Appellees. |
Davenport, Johnston & Urquhart, Panama City, and Truett & Watkins, Miami, for appellant.
Mercer P. Spear, and William H. Sapp, Panama City, for appellees.
On the appeal of this cause five points were presented for consideration. Among the points urged for reversal was one assaulting the ruling of the chancellor which found appellee, as plaintiff in the trial court, to be a taxpayer authorized to maintain this action against the City of Panama City and its contractor.
This suit was one for declaratory decree in which it is alleged among other things that the City had made an unlawful disbursement of funds to its contractor, Bernardo, contrary to the terms and provisions of the plans and specifications approved for the project on which bids were invited and the contract awarded, and also contrary to the bond resolution which formed the basis of the securities to be sold for financing the project.
The complaint alleges that plaintiff is a citizen, freeholder and resident of the City of Panama City and owns, among other property, a described parcel of real estate on which plaintiff resides as his home. This allegation of the complaint is specifically denied in the answer filed by Bernardo. Prior to the taking of testimony in the case Bernardo took plaintiff's deposition in which he testified that the described real property on which he resided was located in the City of Panama City and had an assessed evaluation in excess of the homestead exemption allowed by law. At a later stage of the proceedings the parties stipulated in writing that the allegation of the complaint with respect to plaintiff's status as a citizen, resident and freeholder of the City of Panama City is true. The deposition given by plaintiff with respect to the assessed valuation placed upon the real estate owned by him was not offered in evidence during the trial, nor was other testimony in corroboration thereof adduced. It is conceded that no testimony to the contrary was introduced by Bernardo, nor does any controverting testimony appear in the record.
By the final decree entered in this cause the chancellor found that the complaint fails to allege, and the proof fails to establish, that plaintiff is a taxpayer of the City of Panama City although the establishment of this fact was essential to plaintiff's right to maintain this action. The decree contains recitals of evidence to the effect that 30% of the budgetary requirements of the City for the year 1957 would be raised from excise taxes collected from the citizens of that community, and that only 25% of the budgetary requirements would be raised by ad valorem taxes assessed against real and personal property within the City. It may be parenthetically observed that the bond resolution pursuant to which funds for the construction of the project were realized, the unlawful disbursement of which forms the basis of this action, provides that in the event the revenues from the completed project are insufficient to service the outstanding bonds, the amortization fund shall be supplemented by excise taxes collected by the City until the bonds are paid in full. Upon the basis of the foregoing facts the chancellor proceeded to take judicial notice of the fact that a citizen and property owner living within the limits of the City of Panama City is necessarily required to pay certain excise taxes for the operation and...
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