State Ex Rel. Board of Public Instruction for Dade County v. Wood

• Decision Date: 06 October 1939
• Citation: 191 So. 837,140 Fla. 176
• Parties: STATE ex rel. BOARD OF PUBLIC INSTRUCTION FOR DADE COUNTY v. WOOD, Tax Collector.
• Court: Florida Supreme Court

191 So. 837

140 Fla. 176

STATE ex rel. BOARD OF PUBLIC INSTRUCTION FOR DADE COUNTY v. WOOD, Tax Collector.

Florida Supreme Court, Division B.

October 6, 1939

On Petition for Rehearing November 7, 1939.

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Mandamus proceedings by the State of Florida, on the relation of the Board of Public Instruction of the County of Dade, State of Florida, against Hayes Wood, as Tax Collector for Dade County, Fla. To review a judgment denying peremptory writ quashing alternative writ and dismissing petition, relator brings error.

Affirmed.

THOMAS J., dissenting on original hearing.

On Petition for Rehearing.

COUNSEL

John L. Lindsey, of Miami, for plaintiff in error.

Melbourne L. Martin, of Miami, for defendant in error.

OPINION

CHAPMAN Justice.

The record here discloses that on the 30th day of July, 1938, an alternative writ of mandamus issued out of the Circuit Court of Dade County, Florida, on the petition of the State of Florida ex rel. The Board of Public Instruction of Dade County, Florida, against Hayes Wood, as Tax Collector of Dade County, Florida, whereby, in substance, it was made to appear by the terms of the alternative writ that the respondent, as Tax Collector for Dade County, had collected taxes lawfully levied for the several special tax school districts of said county on tax sales held on June 6, 1938, and had failed to deposit the proceeds of the collections so made in the county depository as provided for by Section 471, C.G.L. That respondent had made deposits in the county treasury, but contrary to the provisions of Section 1033, C.G.L., made certain deductions therefrom in the form of commissions claimed or asserted to then be due the respondent on previous collections and the deductions as made had not been audited and allowed by the Board of Public Instruction of Dade County, Florida, and ordered paid to the respondent as required by law.

The respondent's return to the alternative writ admitted many of the material allegations thereof, and as a reason for not paying the moneys collected prior to deducting certain commissions then due him made known to the Court that the provisions of Section 1033, C.G.L., had been fully complied with by the parties to this suit for a considerable time prior to January 1, 1938. That the respondent during each of the months of January, February, March, April, May and June, 1938, collected moneys due the relator and deposited the same in the proper depository and sent relator monthly statements of the sums so deposited, together with statements of the amount of commissions due the respondent therefor by the relator. When the relator omitted, failed and neglected to pay the commissions due in the total sum of $9,948.43 for the months of January to June, 1938, inclusive, although often requested so to do by the respondent, the relator filed the suit at bar. Relator through counsel filed a motion for the entry of a peremptory writ of mandamus after the filing of the answer or return of the respondent, and on the 7th day of October, 1938, the lower court entered a final judgment denying the peremptory writ, quashing the alternative writ previously issued and dismissing the petition. Relator sued out writ of error and perfected an appeal to this Court and the denial of the peremptory writ and dismissal of the cause are assigned as error in this Court.

Counsel for relator points out that subsection 17 of Section 13 of Chapter 17747, Acts of 1937, Laws of Florida, makes it the duty of the Tax Collector of Dade County, Florida, to collect the amount assessed and when collected he shall pay the money so collected monthly into the county depository. Likewise, Section 471, C.G.L., makes it the duty of every state and county officer when receiving funds collected through his office to promptly pay the same into the county treasury, and it also provides that when moneys are collected by officers and they fail or refuse to pay or deposit the same within thirty days after receiving payment thereof, they shall not be entitled to receive their commissions or compensation for collecting the same. Section 7461, C.G.L., makes it a crime to violate the provisions of Section 471, supra. Section 1033, C.G.L., makes it the official duty of the County Board of Public Instruction to audit the collections of taxes of special tax school districts as made by tax collectors and allow or approve the amount of their commissions therefor. See Chapter 17876, Acts of 1937, Laws of Florida. The law governing or controlling the official duties of a Tax Collector and a Board of Public Instruction with reference to the handling of moneys arising from Special Tax School Districts is correctly stated by counsel for relator.

The issuance of a writ of mandamus at the common law is not a matter of course, but is in the nature of a prerogative writ, the issuance thereof being to a certain degree a matter of judicial discretion. The granting or withholding of the writ by the court and the exercise of its discretion is subject to the well settle principles which have been established by the courts. See State v. Bateman, 131 Fla. 625, 180 So. 22; State ex rel. Durrance v. City of Homestead, 125 Fla. 105, 169 So. 593; State ex rel. Elston Bank & Trust Co. v. Sholtz, 122 Fla. 333, 165 So. 670; State ex rel. Long v. Carey, 121 Fla. 515, 164 So. 199; State ex rel. Klemm v. Baskin, 111 Fla. 667, 150 So. 517; Myers v. State, 81 Fla. 32, 87 So. 80; Welch v. State, 85 Fla. 261, 264, 95 So. 751. See also Tampa Water Works Co. v. State, 77 Fla. 705, 82 So. 230; County Com'rs v. Jacksonville, 36 Fla. 196, 18 So. 339, 29 L.R.A. 416; City of Safety Harbor v. State, Fla., 187 So. 173.

While it is the duty of the Tax Collector under the law to pay the money monthly collected by him into the county depository, it is likewise the corresponding duty...