State Ex Rel. Long v. Carey

• Decision Date: 09 November 1935
• Parties: STATE ex rel. LONG v. CAREY et al., Constituting Board of County Comr's.
• Court: Florida Supreme Court

164 So. 199

121 Fla. 515

STATE ex rel. LONG v. CAREY et al., Constituting Board of County Comr's.

Florida Supreme Court

November 9, 1935

En Banc.

Original proceeding in mandamus by the State, on the relation of Martin H. Long, against James G. Carey and others, as and constituting the Board of County Commissioners of Duval County, Florida. On respondents' motion to quash the alternative writ of mandamus.

Motion granted, and proceeding dismissed.

COUNSEL

Milam, McIlvaine & Milam, of Jacksonville, for relator.

Fant &amp Stanley, F. P. Fleming, and H. A. Kooman, all of Jacksonville, for respondents.

OPINION

CAMPBELL Circuit Judge.

Upon the sworn petition of the relator, an alternative writ of mandamus issued from this court directed to the respondents as, and constituting, the board of county commissioners of Duval county, Fla. The commands of the alternative writ are that the respondents as members of the board of county commissioners of Duval county, Fla., do forthwith fix and levy taxes and tax rates for Duval county, Fla., upon the taxable real and personal property within said county nonexempt and nonhomestead in character, in such amount as may be necessary to pay the interest on and to provide a sinking fund for the redemption of the bonded indebtedness of said county and school tax districts therein, as appropriated in the budget of said county theretofore adopted; or that they show cause why they have not done so.

The alternative writ of mandamus alleges, in substance, that the relator is the head of a family and citizen of, and resides in, Duval county, state of Florida, and owns in fee simple a homestead, particularly described in said alternative writ of mandamus, the same being situated in Duval county, Fla., and occupied by relator as his homestead; that the same is a homestead within the purview of section 7, article 10, of the Constitution of Florida (adopted in 1934), and is of a valuation and assessed at an assessable valuation of less than $5,000. That the respondents as the board of county commissioners of Duval county, Fla., on September 30, 1935, pursuant to their duties as prescribed in section 937, Compiled General Laws of Florida, and chapter 16838, Laws of Florida, Acts 1935, adopted a resolution spread at large upon their minutes, a copy of which is attached to alternative writ as Exhibit 1; that by said resolution the respondents did fix the rates to be levied for any and each county fund of Duval county Fla., and did ascertain the aggregate rate necessary to cover all the ad valorem taxes to be raised on the taxable real and personal property of said county in separate amounts necessary to carry on the governmental functions of said county and necessary to pay interest on, and provide sinking funds for, the redemption of the funded indebtedness and outstanding bonds; all of which things were done by said respondents pursuant to the budget prepared and adopted by the Duval county budget commission for the fiscal year 1935-36.

It is further alleged that in and by the resolution above referred to, it wasdetermined by the board of county commissioners that the total valuation of real and personal property in Duval county, Fla., subject to taxtion was $59,578,878, of which said property the homestead property of the type entitled to the benefit of section 7, article 10, of the Constitution of Florida, constituted $10,520,280, and that by such resolution the said respondent did fix and levy to provide a levy for debt service and sinking funds upon various county bonded indebtedness; setting out in full such levies, and millages fixed and provided.

It is further alleged that the levy of the taxes thus made by the respondents and the rates thus fixed by them is an insufficient levy to provide a sinking fund for the redemption of the indebtedness and outstanding bonds of the county as appropriated in the county budget, if said rates are calculated upon and levied upon the $49,578,568 of nonexempt property within the county, and that the respondents, in calculating said millage, took into consideration the levy upon the nonexempt, and also the exempt property as aforesaid in order to raise the necessary taxes for debt service, so that it will be necessary for the tax assessor of Duval county, Fla., to assess and levy taxes for debt services proposed, upon relator's exempt homestead and other exempt homesteads in order to raise and provide the necessary tax funds to pay the interest and sinking fund requirements of said county bonds; that unless the tax assessor shall levy taxes and assess the payment against your relator's said homestead and similar exempt property, the bonds of Duval county, Fla., will fall into default, and thereby the contract rights of the holders of said bonds will be impaired, and that the tax assessor of Duval county has informed relator that he will be compelled to immediately prepare the tax rolls of the county assessing the taxes against relator's homestead upon the rates fixed for the purpose of providing funds to pay the interest and sinking fund requirements of said county upon the various issues of bonds of the county and its special tax districts set forth in the alternative writ; that the tax assessor of Duval county will, contrary to the mandate and provisions of section 7, article 10, of the Constitution of the state of Florida, levy and assess taxes against relator's homestead to provide funds to pay the interest and provide sinking funds for the redemption of funded and outstanding bonded indebtedness of Duval county, Fla., unless the writ of mandamus prayed for is awarded; 'that all of said county bonds existed as a county debt or lien prior to the adoption of Section 7, Article 10 of the Constitution of the State of Florida.'

The alternative writ of mandmus further alleges, in substance, that it is the duty of the respondents as county commissioners of Duval county, Fla., to levy sufficient taxes and fix sufficient tax rates to be levied for each fund as provided in the budget of said county, adequate to raise taxes, upon the nonexempt taxable property of said county sufficient to pay the interest on and provide a sinking fund for the redemption of the bonded indebtedness of said county as appropriated in the budget.

It is further alleged that the assessable and taxable real and personal property of said county of Duval which is of the character of the nonexempt and not included in the homestead property, is ample in value to provide the necessary tax moneys upon a proper assessment of the rate of taxation thereon to take care of and pay the requirements of interest and sinking fund of the said county bonds of Duval county, district school bonds, and inland navigation bonds, and that should the respondents perform their mandatory duty under the laws of Florida, to fix and levy the proper rate of millage upon said nonexempt property, such levy will provide adequate means for the payment of the said debt service requirements of the said county including the sinking fund and interest on the county bonds.

The respondents have moved to quash the alternative writ of mandamus, upon several grounds set forth in the record. Of these several grounds of the motion, we think it only necessary to discuss a few in our consideration of the merits of the questions involved. We would at this time specially quote the following grounds of the motion, to wit, the second, which is as follows:

'It does not appear that the relator has a clear legal right to a reformation of the millage rates as to each of the issues of bonds described in the alternative writ.'

The third, which is as follows:

'It is not made to appear that the sums required to be raised for bond principal and interest would actually be raised by complying with the mandate of the alternative writ.'

The fifth, which is as follows:

'It appears that the owners of the several issues of bonds referred to in the alternative writ are necessary parties to a suit which is designed to restrict or prevent an exercise of the taxing powers pledged as security for the payment of said obligation.'

The eighth ground, which is as follows:

'The tax assessor is a necessary party to this suit.'

The seventh ground, as follows:

'Relator has an adequate statutory remedy.'

At the very threshold of our consideration of this case, it appears that a proposition of vital importance and one which is probably decisive of relator's right to a peremptory writ of mandamus is the interest of third parties apparently involved in the controversy, who are not before the court. In State of Florida ex rel. Dixon v. Trustees of I. I. Fund, 20 Fla. 402, 404 (text), we said:

'The courts will refuse to interfere by mandamus when it is apparent that the interests of third parties not before the court are involved.'

In that case this court was considering a controversy in which the relator brought mandamus to compel the trustees of the Internal Improvement Fund to convey by deed certain lands which their agent had contracted to sell relator, but which the respondents had, subsequent to such contract, conveyed to another. The grantee in the deed from the respondents was not a party in the mandamus proceedings. In the consideration of that case, the Chief Justice, who wrote the OPINION, quoted with approval from U.S. v. Commissioner, 5 Wall. 563, 18 L.Ed. 692, the following:

'A mandamus will not be granted when it is reasonable to presume that there are persons at the time in possession under another title and who therefore should have an opportunity to defend it,' etc.

In several cases decided since the case of State ex rel. Dixon v. Trustees I. I. Fund, supra, this court has reiterated its position, declining to...