Sholtz v. State Ex Rel. Ben Hur Life Ass'n

• Decision Date: 20 December 1935
• Citation: 122 Fla. 249,165 So. 39
• Court: Florida Supreme Court
• Parties: SHOLTZ et al. v. STATE ex rel. BEN HUR LIFE ASS'N.

165 So. 39

122 Fla. 249

SHOLTZ et al. v. STATE ex rel. BEN HUR LIFE ASS'N.

Florida Supreme Court, Division B.

December 20, 1935

Error to Circuit Court, Leon County; J. B. Johnson, Judge.

Mandamus proceeding by the State, on the relation of the Ben Hur Life Association, against David Sholtz and others. To review an adverse judgment, defendants bring error.

Affirmed.

BROWN J., dissenting.

COUNSEL Cary D. Landis, Atty. Gen., and Robert J. Pleus and James B. Watson, Asst. Attys. Gen., for plaintiffs in error.

Casey &amp Walton, of Miami, and William K. Whitfield, of Tallahassee for defendant in error.

OPINION

BUFORD Justice.

This case is in all respects like the companion case bearing the same title in which opinion was this day filed ([Fla.] 165 So. 34), except that in this case beside the two contentions made in that other case there is a third question presented for our determination, which is stated by plaintiffs in error as follows:

'Where ad valorem tax funds for the payment of the debt-service requirements on road and bridge bonds are the result of a joint levy for the benefit of three issues of county-wide bonds, and are remitted to the State Board of Administration in a lump sum and carried by such Board in a single consolidated account, may the holder of past due obligations subject all funds in the said joint account to payment, or should there be a proration among the said three issues, or other equitable distribution?'

The first two questions presented in this case are identical with those presented in the companion case and resolved against the contentions of the plaintiff in error.

We think that the opinion and judgment in the case of State ex rel. Suwannee River Bridge Co. v. Sholtz et al., 119 Fla. 460, 158 So. 812, and also Id., 119 Fla. 701, 160 So. 872, is authority against the contention of the plaintiffs in error.

In the case of State ex rel. DuPont-Ball, Inc., v. Livingston, 104 Fla. 33, 139 So. 360, 362, we said:

'All the authorities we have examined support the conclusion that general creditors of a municipality, whose claims are secured by the general power of taxation, are entitled to payment of their demands in the order in which they demand payment, where the payment thereof on presentation is authorized by law, and there is a fund on hand out of which the payment is required to be made and which is sufficient for that purpose when the holder having a right to enforce the duty of payment presents his claim.'

And, in support thereof, cited the following authorities:

' Weaver v. San Francisco, 111 Cal. 319, 43 P. 972; State ex rel. Marchand v. City of New Orleans, 37 La.Ann. 13; New Orleans, v. United States, 49 F. 40 (C.C.A. 5th Circuit); State ex rel. Smith v. Hall, 94 W.Va. 400, 119 S.E. 166; Voorhies v. City of Houston, 70 Tex. [331] 341, 7 S.W. 679, 683; Meyer v. Porter, 65 Cal. 67, 2 P. 884; Williamsport v. Com. ex rel. Blair, 90 Pa. 498; United States v. Village of Kent (C.C.) 107 F. 190; Shelley v. St. Charles County Court (C.C.) 21 F. 699; Meyer v. Widber, 126 Cal. 252, 58 P. 532.'

And, in that case, we held:

'General creditors of a municipality, whose claims are secured by the general power of taxation, are entitled to payment of their demands in the order in which they demand payment, where payment on presentation is authorized by law, and there is an available fund on hand out of which payment can be made when the holder presents his claim.'

In City of Clearwater v. State ex rel. United Mutual Life Insurance Co., 108 Fla. 623, 147 So. 459, 460, we said:

'Where bonds have been issued by a municipality, with a provision for the levy of stipulated taxes to provide for their payment, the fund contracted to be raised by the agreed taxes is the foundation upon which the bonds themselves rest. The annual tax is the security offered to the creditors who take bonds under laws which constitute a special agreement on the part of the public corporation debtor to provide for their payment according to terms. And as the supreme Court of the United States has said in the case of Louisiana ex rel. Southern Bank v. Pilsbury, 105 U.S. 278, 288, 26 L.Ed. 1090: 'The annual tax * * * could not be afterwards severed from the contract without violating its stipulations, any more than a mortgage executed as security for a note given for a loan could be subsequently repudiated as forming no part of the transaction.' In other words, such bonds are but the present funding of the necessary future taxes contracted to be levied in order to pay them off in due course, as to the stipulated principal and interest. Godchaux Co. v. Estopinal, 142 La. 812, 77 So. 640.'

And, in that case, we also said:

'It follows from what has been said that while in a certain sense distinct individual private rights are involved in a proceeding in mandamus jointly brought by two separate bondholders to enable them to realize a tax, or the proceeds of a tax, pledged as security for their bonds, yet where the object of the writ of mandamus is simply to compel the disbursement of a common fund to relators who have a legal right to its disbursement, and the fund is one in which all the beneficiaries have a common interest, but the respondents are without any prerogative on their part to resist disbursement on behalf of the absent beneficiaries as against the others who are before the court, no objection by respondents will lie to the fact that two or more claimants have joined in one writ, if each would have been entitled if he had sued separately.'

In support thereof we cited the following authorities:

' Davies v. Corbin, 112 U.S. 36, 5 S.Ct. 4, 28 L.Ed. 627; Hawley v. Fairbanks, 108 U.S. 543, 2 S.Ct. 846, 27 L.Ed. 820; State ex rel. Flaugh v. Jaudon, 286 Mo. 181, 227 S.W. 48; State ex rel. Johnson v. State Tax Collector, 39 La.Ann. 530, 2 So. 59; 38 C.J. 47; 18 R.C.L. 329.'

In this case the record does not show that the fund was derived from levies made to...