State Ex Rel. Franklin County v. Lee

• Decision Date: 12 May 1939
• Citation: 188 So. 775,137 Fla. 658
• Parties: STATE ex rel. FRANKLIN COUNTY et al. v. LEE, Comptroller.
• Court: Florida Supreme Court

188 So. 775

137 Fla. 658

STATE ex rel. FRANKLIN COUNTY et al. v. LEE, Comptroller.

Florida Supreme Court

May 12, 1939

Original mandamus proceeding by the State of Florida, on the relation of Franklin County, Fla., and others against J. M. Lee, as Comptroller of the State of Florida, to compel the respondent to apportion the proceeds of the second gas tax on the basis of the total land and Gulf of Mexico water area of the counties.

Motion to quash the alternative writ granted.

BUFORD J., dissenting.

The state comptroller's distribution of second gas tax to all counties on basis of their area without regard to that part of Gulf of Mexico within boundaries of some of the counties would not be disturbed, where such distribution was reasonable and had been acquiesced in by Legislature for eight years, and Gulf of Mexico water area of some of the counties was constantly shifting, and change in method of distribution would upset and force a reshaping of the fiscal set up in many counties and throw other counties into confusion. Acts 1929, Ex.Sess., c. 14486; Acts 1931 Ex.Sess., c. 15659, § 8(b) (1).

COUNSEL

H. H. Wells, B. K. Roberts, and Weldon G. Starry all of Tallahassee, and S. Whitehurst's Sons, of Brooksville, for relators.

George Couper Gibbs, Atty. Gen., and H. E. Carter and J. Compton French, Asst. Attys. Gen., for respondent.

OPINION

TERRELL Chief Justice.

On petition of relators, alternative writ of mandamus was issued herein directed to the Comptroller commanding him to apportion to Franklin, Wakulla, Taylor, Citrus, Pasco Monroe, Dixie, Gulf, and Hernando Counties, the proceeds of one cent of the second Gas Tax now available for distribution as part of the State Road Distribution Fund on the basis of the area of each of said counties, that is to say, in the proportion that the area of each of said counties bears to the area of all the counties inclusive of that area in the Gulf of Mexico adjacent to the uplands of said counties out to the State boundary line which has not heretofore since the effective date of Chapter 15659, Acts 1931, Ex.Sess., been so included or to show why he refuses to do so. The comptroller now moves to quash the alternative writ.

The Comptroller first contends that the alternative writ should be quashed because other counties in the State are vitally interested and are not made parties to the alternative writ.

The general rule is that only those who seek to compel the performance of a duty and those upon whom the duty is imposed are necessary parties to a proceeding in mandamus but here, nine counties of the State are seeking to compel the performance of a duty which if proper to be performed, vitally affects every other county of the State. In some of the counties, it will completely disrupt their fiscal system and have a marked effect on their credit and standing. Under such circumstances, we think this case is an exception to the general rule and that all counties affected should be made parties to the cause. Bigham v. State ex rel. Ocala Brick & Tile Company, 115 Fla. 852, 156 So. 246.

But if the proper parties were here under the facts shown to exist, are relators in position to urge or require a reapportionment of the funds brought in question on the basis they seek?

Chapter 15659, Acts of 1931, Ex.Sess., provides (1) that the individual counties shall be reimbursed for their contribution to the State Road System, (2) a method was provided for ascertaining the amount contributed by each county to the State Road system, (3) it levied a second gas tax of three cents to accomplish this purpose, and (4) provided for the allocation of the second gas tax to the counties as follows: one cent on the basis of area, one cent on the basis of population, and one cent on the basis of previous contribution by the counties for State roads.

We are concerned here with the distribution of the one cent on the basis of area, the act providing as follows:

'The proceeds of one cent of the said Second Gas Tax shall be apportioned to the credit of the several counties on the basis of area of said counties, that is to say, the apportionment shall be to the county in the proportion that the area of the county shall bear to the area of all the counties.' Section 8(b)(1).

The responsibility for making the distribution under the act as quoted was laid on the Comptroller. The return to the alternative writ shows that the Comptroller proceeded in a very systematic careful manner to do this. The legislature did not define the word 'area' as employed in the act. The Comptroller did not overlook the fact that the counties named as relators bordered on the Gulf of Mexico and that the boundary all around the peninsula was placed by the Gulf stream or three leagues distance from the mainland. In other words, there was a water area in front of and belonging to each of the relator counties.

This water area was eliminated from the computed area of Relators when the distribution of the tax was made and that is the reason for this litigation. The Comptroller was advised by the Attorney General to do this. The basis for this decision was that the distribution on the basis of area grew out of an indebtedness for roads, that roads had a direct relation to the land area and had no relation to the water area in front of the lands, that land area and not water area has all to do with the debt incurred and the reason for the tax and its apportionment to the counties. All lakes, rivers, land locked bays, lagoons, and other inclosed bodies of water were included in the computation of area because they had to be bridged or encircled and for this reason bore a direct relation to the distribution of the tax on the area basis. Such a construction was approved by this Court in Carlton v. Matthews, 103 Fla. 301, 137 So. 815.

This construction of the act by the Comptroller has been acquiesced in by four sessions of the legislature, in other words, eight years have elapsed and no attempt has been made to change or modify it. The change proposed by relators does not seek to increase or decrease the amount each county will receive for its contribution to the State Road system. It seeks to increase the rate or amount relators will receive. The present and future fiscal policy of all the counties has been...