State Ex Rel. Buckwalter v. City of Lakeland

• Decision Date: 03 October 1933
• Citation: 112 Fla. 200,150 So. 508
• Parties: STATE ex rel. BUCKWALTER et al. v. CITY OF LAKELAND et al.
• Court: Florida Supreme Court

150 So. 508

112 Fla. 200

STATE ex rel. BUCKWALTER et al. v. CITY OF LAKELAND et al.

Florida Supreme Court, Division B.

October 3, 1933

Original mandamus by the State, on the relation of T. V. Buckwalter and others, against the City of Lakeland and another.

Demurrer to alternative writ and motion to strike such writ denied.

BROWN and ELLIS, JJ., dissenting in part.

COUNSEL L'Engle & Shands and F. P. Fleming, all of Jacksonville, for relators.

Peterson, Carver & Langston, of Lakeland, for respondents.

OPINION

BUFORD Justice.

The relators filed petition for alternative writ of mandamus which issued.

The allegations of the alternative writ show in effect that the city of Lakeland under its several charters between February 1, 1904, and July 1, 1932, issued a large number of bonds for various municipal purposes; that the bonds issued after October 1, 1927, were all refunding bonds; that a part of the indebtedness had been paid off, but that at the time of the filing of the petition there remained outstanding bonds in the principal sum of $8,700,000, on which accrued and unpaid interest amounted approximately to $215,000 and interest is accruing at the rate of about $500,000 per annum.

The record shows that the city commission on September 6, 1932 enacted the necessary ordinance for the fiscal year beginning September 1, 1932, and by such ordinance there was appropriated for interest on certain sewer bonds which would fall due prior to September 1, 1933, the aggregate sum of $53,240; that there had been collected by the city of this sum something more than $10,000, of which the city had on hand at the time of the institution of this suit $8,260; that the relator is the owner and holder of 96 interest coupons evidencing the interest upon the sewer bonds above referred to maturing June 1, 1933, and for the payment of which interest the aforementioned tax was levied and collected.

It is alleged that the sum on hand in this fund is more than sufficient to pay off and discharge the 96 interest coupons held by the relator.

It is shown that other interest coupons are outstanding and unpaid and that there is not a sufficient fund on hand as result of assessment and collection of the tax aforesaid to pay all the interest coupons which have matured or will mature on or before September 1, 1933.

The respondent pleads the act of the Legislature at the regular session of 1933 known as Senate Bill No. 63 (Laws 1933, c 16075), which was approved and became a law on May 29, 1933.

Section 1 of that act provides:

'Section 1. In any mandamus suit brought by the owner or holder of past due bonds or interest coupons, in any court of this State, seeking to compel payment thereof from money actually on hand in the interest and sinking fund, the peremptory writ, if issued by the court, shall command the respondents to pay to relator only such pro rata portion of the moneys actually on hand in the interest and sinking fund as the relator's amount of past due bonds or interest coupons bear to the whole amount of past due bonds or interest coupons then unpaid and outstanding. This Act shall not apply to the bonds, contracts or other obligations of governmental units, issued or incurred after the passage of this Act. If any word, sentence, clause, section or provision of this Act shall be held to be unconstitutional it will not affect the remainder of this Act.'

The defense is made by way of motion to strike and demurrer to the alternative writ.

There are two questions presented by the pleadings. One question is whether or not the act of the Legislature above referred to is valid, and the other is whether or not under the ordinance of the city of Lakeland authorizing the assessment and collection of the tax the relator may have the relief prayed, even though the legislative act be held invalid. We think the second question presents no serious problem. The tax was levied under the ordinance for the purpose of paying the interest on the coupons here involved, together with other like coupons. And so it is that, unless the city is relieved from the duty of paying relator's coupons in full when it has the money on hand under the proper fund sufficient to pay the same by the provisions of Senate Bill No. 63, it must be required to pay off and discharge these coupons in response to mandamus instituted for that purpose. The law applicable to the application of such funds, under such conditions, was clearly enunciated by this court in the case of State ex rel. Gillespie et al. v. Carlton et al., 103 Fla. 810, 138 So. 612, 618, in which Mr. Justice Davis, speaking for the court, said:

'To support relators' contentions in this respect, there appear to be many adjudicated cases which hold that the rule is that, when a fund has accrued in the hands of a debtor which is insufficient to pay all bonds payable out of such fund, one bondholder of the series for which the raising of such fund was pledged when the bonds were issued may have his bonds ordered paid in full from the funds in his debtor's hands, even though the fund at the time of bringing suit is not sufficient to pay all the outstanding bonds then matured, it appearing that the funds in hand are accruals from the exercise of an inexhaustible power of taxation, and that the whole fund required, of which the fund in hand is but a part, is replenishable by the further exercise of the inexhaustible taxing power, thereby enabling the debtor to ultimately pay all who may have claims against the fund as a whole'--citing numerous authorities.

Then we quoted, with approval, from the case of Voorhies v. City of Houston, 70 Tex. 331, 7 S.W. 679, in which it was said:

'If there be a fund to which more than one creditor is compelled to look as the only source from which their claims can be paid, and this be insufficient to pay all in full, then it is manifestly just, none of the claims having a preference, that the fund should be distributed pro rata. When, however, there is a means through which all the creditors may be paid in full, the reason for directing a pro rata payment does not exist, and that one creditor, by the exercise of a higher degree of diligence than exercised by another, may secure payment at an earlier day than does the other, furnishes no reason why such creditor, much less the debtor, should be heard to complain because a pro rata payment was not directed. As we have already seen, the city has power to levy such taxes as are necessary to satisfy every debt legally made and undertaken, existing at the time the present constitution was adopted, and there can be no pretense of its want of ability to raise means sufficient to pay in full every debt of that character. The fact that there are some uncollected taxes does not give to other creditors not before the court any right to a part of the particular fund to be realized from their collection, and especially so when it appears that the uncollected taxes were not levied for the benefit of any particular creditor, or class of creditors, but for creditors generally who held parts of the bonded indebtedness of the city. If, however, other creditors could be heard to object to the payment in full of the claim of appellant out of the fund to be realized from the taxes now uncollected, the appellee cannot be heard to insist that the Court below ought not to have directed other than a pro rata payment to be made to the appellants.'

And we further said:

'With the foregoing statement of the law applicable to cases of mandamus against public officers to compel the disbursement of funds to petitioning bondholders out of the available sources of payment provided by law and contract for the satisfaction of the indebtedness they are attempting to collect, this court agrees. Not only is the doctrine stated amply supported by authority from courts all over the United States, but it has the approval of the Supreme Court of the United States and of the Circuit Court of Appeals of the Fifth Circuit, which is the circuit in which the state of Florida is located.'

In State ex rel. Du Pont Ball, Inc., v. Livingston, filed January 12, 1932, reported 139 So. 360, 361, we said:

'The city of Homestead, Fla., had on hand certain funds applicable to payment of its bonded debt; the total of the moneys on hand was insufficient to pay a judgment which had been recovered against the city on some of its coupons and meet other demands payable out of the same fund, but which had not been reduced to judgment; in a contest between relator in mandamus seeking to enforce payment of the available funds on its judgment and a relator seeking to enforce application of the available funds to coupons payable out of the fund, but which had not been reduced to judgment, held, that the character of the debt was not changed by the rendition of judgment on it, and that the claimants in mandamus would be entitled to priority of payment in the order in which the alternative writs of mandamus were served, where the available fund attempted to be reached by the writs was not sufficient to satisfy the demands of both relators.'

So the respondent must rely upon the validity of Senate Bill No. 63, while the relators contend that Senate Bill No. 63 is invalid because, first, it impairs the obligation of contract; second, it denies relators equal protection of the laws; and, third, it divests the Supreme Court and the circuit courts of their constitutional jurisdiction to compel by mandamus the performance of official and legal duties.

Article 5, § 5, of the Constitution of Florida, provides that the Supreme Court 'shall have the power to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and also all writs necessary or proper to...