Smith v. Daffin

• Decision Date: 14 June 1934
• Citation: 155 So. 796,115 Fla. 418
• Court: Florida Supreme Court
• Parties: SMITH v. DAFFIN et al.

155 So. 796

115 Fla. 418

SMITH v. DAFFIN et al.

Florida Supreme Court

June 14, 1934

THOMAS, Circuit Judge (dissenting).

The transaction which gave rise to this suit, as it is unfolded by the pleadings and the proof, is:

Victory Bridge had been constructed by the state road department across the Apalachicola river, but the approach where the bridge entered Jackson county had not been completed. The bridge was accessible only by using a temporary ramp which impeded traffic. Much time had been consumed by the county commissioners in attempting to induce the state road department to build a permanent approach. These efforts had been unavailing.

On December 12, 1922, the then county commissioners entered into a contract with the appellant which in substance authorized him to take steps 'legal or otherwise' to 'induce or compel' the state road department to finish the bridge by building the approach in accordance with the original plans of the department. The entire expense of his efforts were to be borne by him. If he accomplished nothing, there was to be no expense to the county. If he succeeded, he was to receive a sum equal to 10 per cent. of the expenditure established by the vouchers of the department. He succeeded. The vouchers totaled $109,494.92, and he claimed $10,949.49 for his services which the commissioners were willing to pay but from the payment of which they were enjoined.

Nothing whatever appears from the record to indicate that the transaction was not one entered into with utmost good faith by all parties and executed in the same fashion.

The legal impediment presented and insisted upon by appellees, S A. Daffin, C. N. Horne, and J. L. Carroll is that the county commissioners were without authority to aid in the construction of a state road without a vote of the people approving the expenditure.

This court has been repeatedly committed to the proposition that a county can make expenditures only where authority is expressly given, or may be implied from an express power. Payne v. Washington County, 25 Fla. 798, 6 So. 881; National Bank of Jacksonville v. Duval County, 45 Fla. 496, 34 So. 894, 3 Ann. Cas. 457. Indeed, counsel for the parties seem to agree upon this principle.

The powers given county commissioners by statute are defined in section 2153, C. G. L. 1927, and those pertaining to roads appear in paragraphs 1, 5, 10, and 13.

They were given by law enacted before the state road department was created as also were the ones in section 2436, C. G. L 1927.

By section 1662, C. G. L. 1927, the counties were empowered to aid in the construction of state highways where approved by the vote of the people.

Under a special act (chapter 7493) passed in 1917, Jackson county was authorized to issue $30,000 in time warrants to pay that county's share of the cost of the bridge.

It seems quite clear that any authority for the expenditure in paying for appellant's services under the contract must be found in the statutes, sections 2153, 2436, 1662, or the special act. In this search I find nothing to support the claim. The fact that the project was one of the state eliminates the first and second; the absence of any indorsement by the people makes the third inapplicable; and the fourth was authority only for the issuance of $30,000 in time warrants which have already been used for the purposes for which they were issued.

The courts have frowned on such contracts as was executed by appellant and the county commissioners. The Supreme Court of the United States, in the case of Providence Tool Co. v Norris, 2 Wall. 45, 56, 17 L.Ed. 868, condemned them as being...