State Ex Rel. First Sav. & Trust Co. of Tampa v. Sholtz

• Decision Date: 30 September 1936
• Citation: 169 So. 849,125 Fla. 361
• Parties: STATE ex rel. FIRST SAVINGS & TRUST CO. OF TAMPA v. SHOLTZ, Governor, et al.
• Court: Florida Supreme Court

169 So. 849

125 Fla. 361

STATE ex rel. FIRST SAVINGS & TRUST CO. OF TAMPA v. SHOLTZ, Governor, et al.

Florida Supreme Court, Division A.

September 30, 1936

Original mandamus proceeding by the State of Florida, on the relation of the First Savings & Trust Company of Tampa, a corporation organized and existing under the laws of the state of Florida, with its principal office and place of business in Tampa, Hillsborough County, Florida, against Davis Sholtz Governor, and others, as and constituting the Board of Administration of the State of Florida, and others. On motion to quash amended alternative writ.

Motion sustained.

COUNSEL Sutton, Tillman & Reeves, of Tampa, for relator.

Cary D Landis, Atty. Gen., H. E. Carter and James B. Watson, Asst Attys. Gen., and Hull, Landis & Whitehair and C. W. Luther all of De Land, for respondents.

OPINION

BROWN Justice.

In 1927 the Legislature enacted a special act, chapter 13471, authorizing the issuance of $350,000 of bonds by Union county for the purpose of hard-surfacing certain state roads located in that county. The act required the county commissioners of the county to set aside a sum sufficient to pay the interest and provide a sinking fund to meet the principal of the bonds when due, 'out of any moneys made payable by the laws of the State of Florida to said Union County, Florida, as part of the proceeds of the State Gasoline Tax provided for by Chapter 9120 Acts of 1925 [1923], Laws of Florida, and any Acts amendatory thereof, and it shall be the duty of said County Commissioners to provide for the setting aside of all the moneys received from the State as Union County's share of said gasoline tax under the Act aforementioned, and acts amendatory thereof, to meet the interest and to create a sinking fund for the retirement of said bonds at maturity, and in the event said gasoline tax or the moneys derived therefrom shall for any reason, by legislative act or otherwise, be withdrawn from the use of said Union County, Florida, or be insufficient to meet said interest payments and create a sinking fund sufficient to redeem said bonds at maturity, said County Commissioners shall thereupon have power and it shall be their duty to forthwith provide for the levy annually of a tax upon all the taxable property in the County sufficient to pay the interest on said bonds and also to create a sinking fund for the retirement of said bonds at maturity, and to cause the said sinking fund to be provided for by resolution to be entered upon the minutes of the Board.' Section 3.

Shortly thereafter, in January, 1928, bonds were issued and sold pursuant to this act, and validated by decree of the circuit court, all of which was shown by the recitals in the bonds themselves, and the act as written became a part of the bond contract.

The relator became the owner of $43,000 of these bonds, and has brought this mandamus proceeding to compel the respondent officials to pay certain of the bonds which had matured and past-due interest coupons amounting to $11,320, which it is alleged the respondents have refused to pay despite the fact that some $49,000 of ad valorem and gasoline tax moneys have accumulated in the hands of said respondent state board of administration to the credit of Union county, which constitute funds that were and are specifically pledged for the payment of relator's said bonds by the special act, above quoted from, under which act the bonds were issued. The alternative writ was amended, the purpose of the amendment being to eliminate any command for the payment of interest accruing on said instruments after maturity.

The board of administration interposed a motion to quash the alternative writ as amended, which motion to quash was adopted by the county commissioners of Union county.

Among the grounds of the motion are the following:

That the pledge of gasoline tax moneys under chapter 13471 to the payment of the bonds here involved was contingent and revocable and covered only such moneys as should be made payable by the laws of Florida to Union county 'as part of the proceeds of the State gasoline tax provided for by chapter 9120, Acts 1923, and any acts amendatory thereof,' and that the special act, chapter 13471, provided that 'in the event said gasoline tax or the moneys derived therefrom shall for any reason, by legislative act or otherwise, be withdrawn from the use of said Union County,' (section 3) or should prove insufficient for interest and sinking fund purposes, the county commissioners should thereupon provide for the levy of an annual ad valorem tax on all taxable property in the county sufficient to pay the interest and create the sinking fund for the retirement of the bonds.

That said chapter 9120, Acts 1923, was subsequently amended by chapter 10025, Acts 1925, and by chapter 12037, Acts 1927, and was further amended by chapter 14575, Acts 1929 (Ex.Sess.), and was thereafter repealed by chapter 15659, Acts 1931 (Ex.Sess.).

That subsequent to the issue of these bonds, the Legislature, by chapter 14486, Acts 1929 (Ex.Sess.), created the board of administration of the state of Florida; that said act has since been amended (see chapter 15891, Acts 1933) and that as so amended, said act, especially section 18 thereof, is inconsistent with the contingent and revocable pledge of gasoline tax moneys contained in chapter 13471 made for the payment of relator's bonds, and that said pledge has therefore been revoked, thus negativing any duty on the part of the respondents to comply with the command of the alternative writ, which would require respondents to pay relator's bonds and coupons out of gasoline tax funds to the exclusion of the holders of bonds and coupons of any other issue of bonds of Union county.

It is also contended by respondents that the provisions of chapter 15891, Acts 1933, known as the Kanner Act, are inconsistent with the pledge of gasoline tax moneys contained in chapter 13471, and operates a withdrawal of such moneys, to the credit of Union county, from the conditional pledge made in said special act.

The relators contend that the position thus taken by the respondents is untenable and arises from a misconstruction of the terms and legal effect of chapter 13471 and the later enactments referred to. This requires some analysis of the pertinent features of these acts.

The pledge which chapter 13471 authorized the county to make for the payment of these bonds was 'moneys made payable by the laws of the State of Florida to said Union County, Florida, as part of the proceeds of the State Gasoline Tax provided for by Chapter 9120 Acts of 1925 [meaning 1923], Laws of Florida, and any Acts amendatory thereof.' Section 3. But this pledge was not absolute. The condition attached was that 'in the event said gasoline tax or the moneys derived therefrom shall for any reason, by legislative act or otherwise, be withdrawn from the use of said Union County,' (section 3) or prove insufficient to pay interest and principal, then the county commissioners were required to levy ad valorem taxes sufficient to take care of these obligations, and the interest thereon as they matured.

Thus the question here in whether or not 'said gasoline tax,' that is, 'moneys made payable by the laws of the State of Florida to said Union County as part of the proceeds of the State Gasoline Tax provided by chapter 9120, Acts of 1923, and any acts amendatory thereof' had been withdrawn by the Legislature before the funds here in question, held by the board of administration to the credit of Union county, had been produced and become 'payable' to Union county.

Said chapter 9120, of the Acts of 1923, is an act of 14 sections, entitled: 'An Act Imposing License Taxes Upon Gasoline or Other Like Products of Petroleum; Providing for Reports of Sale of Such Commodities to the Comptroller of the State of Florida; Providing for the Disposition of the Monies derived From Such Tax and Fixing a Penalty for the Violation of the Provisions of This Act and to Repeal All Laws in Conflict With This Act.'

Section 1 of this act required each dealer in gasoline in this state to pay an annual license tax to the state of $5, and an excise tax of 3 cents per gallon for every gallon of gasoline sold by him, payable to the comptroller monthly, 2 cents of this gallonage tax to go to the state for the use of the road department, and 1 cent to the counties, each county to get an equal amount. The act does not direct what use the counties should make of these moneys, and the tax levied was a state tax. Section 12 of the act provided that if the equal division to the counties of the money derived from the 1 cent per gallon tax should be held invalid, such money should go into the state's general revenue fund.

Section 1 and 12 of this act were amended in 1925 by chapter 10025. But these amendments are not material here. The amendment to section 1 raised the gallonage tax to 4 cents, 3 cents to the state for the use of the road department, and 1 cent to be equally divided among the counties as before.

Sections 1, 2, 4, 9, and 11 of chapter 9120, Acts 1923, were amended by chapter 12037, of the Acts of 1927, but none of these amendments are material to the question here presented. The most pertinent amendment was to section 4, which amended section provided that the amount becoming due to each county should be transferred from the state treasury and deposited with the county depository to be used for the construction and maintenance of roads, 'or otherwise as is now or may hereafter be provided by Law.' The tax of 1 cent per gallon to be paid to the state and divided equally among the counties was left intact.

Sections 1 and 4 of chapter 9120 were again amended, this time more...