State Ex Rel. Gillespie v. Vickers

• Decision Date: 10 May 1933
• Citation: 110 Fla. 157,148 So. 526
• Parties: STATE ex rel. GILLESPIE et al. v. VICKERS et al.
• Court: Florida Supreme Court

148 So. 526

110 Fla. 157

STATE ex rel. GILLESPIE et al. v. VICKERS et al.

Florida Supreme Court

May 10, 1933

En Banc.

Original proceeding in mandamus by the State, on the relation of J. W Gillespie and others, against W. C. Vickers, Chairman, and others, as and constituting the Board of County Commissioners of Charlotte County, and others. On motion to quash the alternative writ of mandamus, and on relator's motion for issuance of a peremptory writ.

Decision in accordance with opinion.

ELLIS and BROWN, JJ., dissenting.

COUNSEL Vocelle & Mitchell, of Vero Beach, and Hull Landis & Whitehair, of De Land, for relators.

Earl D Farr, of Punta Gorda, for respondents.

OPINION

PER CURIAM.

Alternative writ of mandamus was issued by this court directed to the board of county commissioners, the tax assessor, the tax collector, and the clerk of the board of county commissioners of Charlotte county, to respectively levy, assess, and collect certain taxes with which to pay certain bonds issued under authority of law by the proper officials of Charlotte county, together with certain interest coupons.

The matter is now before us on motion to quash the alternative writ and also on motion of the relators to issue peremptory writ, both of which will now be considered.

The bonds were issued under the provisions of chapter 10409 Special Acts of 1925. Section 3 of that act provides:

'The Board of County Commissioners shall levy annually all such special taxes on the taxable property within the limits of said County, as may be necessary to pay the interest on said bonds and provide a sinking fund for the payment thereof, and such sinking fund shall be promptly invested in bonds hereby authorized to be issued or other County or Municipal Bonds; but the Board of County Commissioners may, if they shall deem it advisable, postpone the levy of taxes for the creation of a sinking fund until the year 1926.'

The authority of the board of county commissioners to levy a tax to provide for the payment of the bonds and interest is contained in this section of the act, and there is no provision therein which will authorize the courts to command the county commissioners to levy a tax except such as may be required to pay interest and an annual tax to create a sinking fund. This does not mean that, when the county authorities have failed in past years to levy and collect a sufficient tax to create a sinking fund for the payment of principal of the bonds, the court may by mandamus require the authorities to levy and collect a tax in one year to pay the principal of bonds which have become in default by reason of the nonperformance of the duty devolved upon such county authorities. Under this act the county authorities may be required to annually levy and assess, and, if possible, collect a tax which, if collected, would be sufficient to create a sinking fund which would be ample to retire the bonds when they become due.

This does not mean that the bondholder has no recourse. He has his recourse in a suit at law to reduce his bonds to judgment.

In State ex rel. Dos Anigos, Inc., v. Lehman et al., 100 Fla. 1313, 131 So. 533, 539, this court said:

'The authorities generally hold that a court may, by virtue of its broad equity powers, spread a tax levy over a period of years when levied to satisfy a judgment obtained against a governmental entity or when levied under an act allowing some range of discretion in the taxing power. City of Cleveland, Tennessee v. U.S. (C. C. A.) 166 F. 677; Deere v. Board of County Commissioners of Rio Grande County (C. C.) 33 F. 823; Deuel County, Nebraska v. First National Bank (C. C. A.) 86 F. 264; Phelps v. Lodge, 60 Kan. 122, 55 P. 840; State v. School Dist. No. 7, 22 Neb. 700, 36 N.W. 278; City of Little Rock v. United States (C. C. A.) 103 F. 418; Graham v. Quinlan (C. C. A.) 207 F. 268; State v. Weir, 33 Neb. 35, 49 N.W. 785; Village of Oshkosh v. Nebraska (C. C. A.) 20 F. (2d) 621; People ex rel. Akin v. Board of Supervisors of Adams County, 185 Ill. 288, 56 N.E. 1044.'

The alternative writ commands the tax collector to proceed to collect the tax contemplated in the writ. There is no allegation or showing that the tax collector has refused to collect the tax or that any duty rests upon him at this time to collect such tax. Therefore this command in the alternative writ is prematurely made.

In consideration of the foregoing matters, it is ordered that, unless the relators shall within ten days move to amend his alternative writ so as to eliminate the requiring of the levy of the tax to pay the matured and unpaid bonds, and so as to eliminate the command to the tax collector to proceed to collect the tax and so amend as to eliminate the tax collector as a party to this suit, the alternative writ will be quashed. If the alternative writ be so amended, the respondents shall have five days thereafter to plead further as they shall be advised. It is so ordered.

WHITFIELD and TERRELL, JJ., concur.

ELLIS and BROWN, JJ., dissent.

CONCURRING

DAVIS Chief Justice (concurring).

I concur in the conclusion reached but for slightly different reasons from those stated in the per curiam opinion.

The bonds involved in this case were courthouse and road bonds issued under chapter 10409, Special Acts of 1925, Laws of Florida. Section 3 of that act reads as follows:

'The Board of County Commissioners shall levy annually all such special taxes on the taxable property within the limits of said County, as may be necessary to pay the interest on said bonds and provide a sinking fund for the payment thereof, and such sinking fund shall be promptly invested in bonds hereby authorized to be issued or other County or Municipal Bonds; but the Board of County Commissioners may, if they shall deem it advisable, postpone the levy of taxes for the creation of a sinking fund until the year 1926.'

The budget system of taxation prevails with respect to counties in the state of Florida, and the counties themselves are by the Constitution made political subdivisions of the state through which important and indispensable functions of government are carried out. See section 1, article 8, state Constitution. In the case at bar the resort is to an enforced amendment of a county budget in order to provide therein for the payment during the current budget year of all the matured bonds and interest coupons held by relator.

In such a situation as is here presented, where the object of the proceeding in mandamus is to enforce in one year the inclusion in the county budget of appropriations sufficient to meet, not only current interest and sinking fund requirements for that year, but also an additional appropriation sufficient to pay the accumulations of the past, the practical result of the mandamus demand may be that, as to the accumulations of the past, the writ of mandamus must be regarded as partaking of the nature of a judgment and execution at law, thereby rendering the mandamus proceeding subject to those equitable principles that may, as a matter of discretion in appropriate cases, be invoked to cause the court to suspend the issuance of a peremptory writ for an oppressive levy of taxes for one and the same year, by spreading the past accumulations over several years. See Deuel County v. First Nat. Bank (C. C. A.) 86 F. 264; City of Little Rock v. United States (C. C. A.) 103 F. 418; City of Cleveland, Tenn. v. United States (C. C. A.) 166 F. 677; State v. School-Dist. No. 7, 22 Neb. 700, 36 N.W. 278; State v. Weir, 33 Neb. 35, 49 N.W. 785; Phelps v. Lodge, 60 Kan. 122, 55 P. 840, for such rules.

I have no doubt that, when taxes are required to be levied under an act allowing some range of discretion in the taxing power, the principles stated in the cases just cited may be applied when by appropriate defenses the court is called on to make such application in a particular case. But any such defense would have to be specially pleaded by a respondent under such a showing as would make it appear that what is proposed in the way of a spread of taxation is interposed in good faith and is justified ex necessitate rei. Such legal principle was recognized in the opinion in State ex rel. Dos Anigos, Inc., v. Lehman, 100 Fla. 1343, 131 So. 533, 534, where the court in the seventh headnote said:

'A court may, by virtue of its broad equity powers, spread a tax levy over a period of years when levied to satisfy a judgment obtained against a governmental entity or when levied under an act allowing some range of discretion in the taxing power.'

But as to a pledged statutory duty to make an annual statutory levy of taxes to provide a current sum sufficient to pay current interest and provide a portion of a promised sinking fund to avoid default in payment at the times agreed in the contract, there can be no more discretion resting in the court to refuse to order such levy when it is not made according to law than there was in the public officials who did not comply with the law after having entered into a solemn and binding irrevocable contract so to do.

For the enforcement of past accumulation of bonded debts and coupons, the writ of mandamus without a judgment is unquestionably available, else the case of Com'rs of Columbia County v. King, 13 Fla. 451, must be overruled. But such writ of mandamus, when employed to collect past accumulations of debts through the imposition of a current tax in connection with other current taxes required to be levied to meet the expenses of the current year, may so partake of the nature of a judgment and execution at law for the money due and sought to be collected by such writ, as to subject the mandamus proceeding to the same rules that would apply to a mandamus applied to enforce...