State Ex Rel. Barnett Nat. Bank of De Land v. Thursby

• Citation: 112 Fla. 257,150 So. 252
• Parties: STATE ex rel. BARNETT NAT. BANK OF DE LAND v. THURSBY et al.
• Decision Date: 06 October 1933
• Court: Florida Supreme Court

150 So. 252

112 Fla. 257

STATE ex rel. BARNETT NAT. BANK OF DE LAND v. THURSBY et al.

Florida Supreme Court, Division B.

October 6, 1933

Rehearing Denied Oct. 30, 1933.

Mandamus by the State, on the relation of the Barnett National Bank of De Land, a banking association organized and existing under the banking laws of the United States of America, against Ben D. Thursby and others, as and constituting the Board of County Commissioners of Volusia County, Fla., and others.

Motion to strike portions of return to the alternative writ denied motion to quash alternative writ denied, demurrer to alternative writ overruled, and peremptory writ issued.

COUNSEL Hull, Landis & Whitehair, of De Land, for relator.

W. J Gardiner, of Daytona Beach, for respondents.

OPINION

BUFORD Justice.

This is an original mandamus proceeding before us on returns to the alternative writ, demurrer to the alternative writ, motion to strike portions of the return, motion to quash the alternative writ, and motion for peremptory writ, the return notwithstanding.

Motions to strike portions of the returns to the alternative writ will be denied.

Motion to quash the alternative writ will be denied.

The demurrer to the alternative writ and motion for peremptory writ will be considered together.

The proceeding was instituted to compel the board of county commissioners and the clerk of the board of county commissioners, the tax assessor, and the tax collector of Volusia county to levy, assess, and collect a tax sufficient to pay the relator $6,000, and to require the payment of the proceeds of the tax to be made to the relator. Volusia County Fair Association was a nonprofit corporation organized in compliance with sections 4517-4527, inclusive, Rev. Gen. St §§ 6516-6526, inclusive, Comp. Gen. Law, and was incorporated in November, 1923, under decree of the circuit court of Volusia county. From that date until and including the year 1932, Volusia County Fair Association annually conducted the county fair in Volusia county for the purposes provided in the statute. In 1930, on the 6th day of August, the county commissioners of Volusia county adopted its annual budget of the expenses of the general fund of Volusia county aggregating a total of $134,900 to be raised for taxes to be levied in that county for the fiscal year beginning October 1, 1930, and ending September 30, 1931, and under the power and authority of the sections of the statute above mentioned the board of county commissioners included in such budget of the expenses of the general fund of Volusia county an appropriation for the said Volusia County Fair Association the sum of $6,000, for the purpose of aiding in the conduct of the fair to be held in February, 1931, which Volusia county fair was held in the month of February, 1931. After the resolution adopting the budget was passed by the board of county commissioners, about October 6, 1930, Volusia County Fair Association, being in urgent need of money to prepare for and conduct the county fair to be held in February, 1931, applied to and received from the relator a loan of $6,000 in anticipation of the receipt of the appropriation of $6,000 above referred to, and executed to the relator an assignment of the appropriation of $6,000. On the same date the board of county commissioners of Volusia county, as a part of the same transaction, approved the assignment of the appropriation by Volusia County Fair Association; the assignment and approval being in words and figures as follows:

'For value received The Volusia County Fair Association Inc., hereby assigns, sets over and transfers unto the Barnett National Bank of De Land all of its right, title and interest in and to an appropriation of Six Thousand ($6,000.00) Dollars heretofore made by Volusia County through its Board of County Commissioners in the annual budget for the year 1930, and does hereby direct, authorize and instruct the Board of County Commissioners of Volusia County, Florida, to pay over such appropriation as and when the same is available, or any part or portions thereof from time to time when available to the Barnett National Bank of De Land, De Land, Florida.

'In witness whereof said Volusia County Fair Association Inc., has caused its name to be hereunto subscribed and its official seal affixed under due corporate authority and by appropriate action of the Board of Directors of said corporation, and executed by the Treasurer of said corporation and attested by the Secretary this 6th day of October, A. D. 1930.

'Volusia County Fair Association, Inc.

'By R. G. Bennett, Its Treasurer

'[Corporate Seal.]

'Attest:

'E. W. Brown, Its Secretary.'

'Barnett National Bank of De Land, De Land, Florida.

'Attention Mr. L. A. Perkins

'Gentlemen: This will serve to advise you that the Board of County Commissioners of Volusia County, Florida, has this day received a true and correct copy of the within and foregoing assignment and does hereby consent and approve the same and will carry out the terms thereof as therein directed.

'Witness the signatures of the...