State Ex Rel. Sherrill v. Milam

• Decision Date: 17 November 1933
• Citation: 113 Fla. 491,153 So. 125
• Parties: STATE ex rel. SHERRILL et al. v. MILAM et al.
• Court: Florida Supreme Court

153 So. 125

113 Fla. 491

STATE ex rel. SHERRILL et al. v. MILAM et al.

Florida Supreme Court

November 17, 1933

En Banc.

Original proceedings in mandamus by the State, on the relation of J H. Sherrill and another, against Marcus A. Milam and others as and constituting the Board of Commissioners of the Everglades Drainage District. On general and special demurrers to the answer and return to the alternative writ of mandamus, and motion to strike out certain paragraphs of the answer and return.

Decision in accordance with opinion.

Writ amended 153 So. 136.

COUNSEL Watson & Pasco & Brown, of Pensacola, for relators.

Evans Mershon & Sawyer, of Miami, D. L. Southard, of West Palm Beach, Nathan Cockrell, of Everglades, Carter & Yonge, of Pensacola, Bedell & Bedell, of Jacksonville, and Thomas McE. Johnston and Stapp, Gourley, Vining & Ward, all of Miami, for respondents.

OPINION

CAMPBELL, Circuit Judge.

On April 7, 1933, we rendered a decision and made an order herein overruling the motion to quash the alternative writ of mandamus, 153 So. 100. Permission was granted respondents to file a further return, and on the 19th day of July, 1933 they filed their answer and return containing twenty-three paragraphs. The relators have filed general and special demurrers to the answer and return, and also motions to strike certain paragraphs thereof. These are now before us for consideration.

The demurrers attack the answer as a whole, and also each paragraph thereof that does not specifically and unqualifiedly admit allegations of the alternative writ of mandamus.

The respondents, in their answer and return, have undertaken to set forth many of the contentions urged, and questions raised by them on their motion to quash the alternative writ of mandamus. These questions have been reargued, and again thoroughly briefed by the counsel representing the respondents. However, we do not find anything presented in the argument at this hearing, nor in the carefully prepared briefs of the able counsel representing the respondents, to cause us to change our views or to reverse our holdings, on the propositions raised by the motion to quash the alternative writ of mandamus. Our holdings as to the constitutionality of the statutes, and our construction of the statutes in the opinion rendered on the motion to quash the alternative writ of mandamus have therefore become and are the law of the case regarding these matters.

The demurrers to and the motions to strike those paragraphs of the answer and return which undertakes to raise again the propositions decided in the opinion rendered on the motion to quash the alternative writ are well taken, and are therefore sustained, and such paragraphs are stricken.

In paragraphs 3, 4, 22, as amended, and 23 of the answer and return, the respondents undertake to plead certain matters of defense or, which they claim should bar the issuance of a peremptory writ of mandamus, that were not raised before us and passed upon in our consideration of the motion to quash the alternative writ.

The demurrers and motions to strike are directed at, and attack the sufficiency of the allegations of each of these paragraphs as constituting a defense, or a bar to the issuance of a peremptory writ, on the facts alleged in the alternative writ of mandamus.

In paragraph 3 of the answer and return the respondents seek to set up as a bar to the issuance of a peremptory writ of mandamus the fact that the trustees of the internal improvement fund of the state of Florida hold drainage tax sale certificates for large amounts which they have not paid, nor have they paid the drainage tax accruing against the land after the expiration of two years from the date of such certificates. It is claimed that because of the failure of the trustees to pay such amounts to the board of commissioners of Everglades drainage district, they, the respondents, should not be required to prepare the lists of lands for the assessment and levy of the drainage tax by the year 1932 as they are commanded to do under the provisions of section 1167, Revised General Statutes of Florida, section 1537, Compiled General Laws.

It is further set up in paragraph 3 of the answer and return that the three-judge statutory federal court for the northern district of Florida, in the case of Rorick et al. v. Board of Commissioners of Everglades Drainage District et al. (D. C.) 57 F. (2d) page 1048, has held that the provisions of chapter 14717, Laws of Florida, Acts of 1931, requiring that all drainage tax sale certificates held by the trustees of internal improvement fund, be transferred to the board of commissioners of Everglades drainage district, is unconstitutional and void in so far as they affect the holders of bonds issued prior to the act. It is also, in substance, alleged that, in the said decision of the three-judge federal court above referred to, it was held that under the provisions of section 12, chapter 6456, Laws of Florida, Acts of 1913, as amended by chapter 7305, Laws of Florida, Acts of 1917, it is made the duty of the trustees of the internal improvement fund to pay cash immediately for the taxes on all lands bid off at drainage tax sales by the tax collectors of the counties embraced in whole or in part in said Everglades drainage district. It is further claimed that the said decision of the three-judge federal court held that the trustees of internal improvement fund are required to pay the drainage taxes to Everglades drainage district upon all such lands bid in for them by the tax collectors after two years from the date of the tax sale certificates. It is then alleged in substance that the drainage tax sale certificates held by the trustees of the internal improvement fund, together with the interest, and the subsequent tax accrued on all such lands amounts to about $5,000,000; and that if the trustees of the internal improvement fund would pay such sum to the board of commissioners of Everglades drainage district, there would be no necessity for the assessment of the drainage tax, as the respondents would have funds sufficient to pay the past due principal and interest on the bonds held by the relators and others.

Even if we should hold that the trustees of the internal improvement fund were, and are required, under the law, to pay cash for all lands bid off for said trustees by the tax collectors, and that the same should be paid immediately as is required of individual purchasers at such tax sales; and even if we should hold that the trustees of the internal improvement fund are required to pay to the Everglades drainage district, the drainage taxes on all lands described in tax certificates held by them, after the date of the vesting of title in them under the statute; and even if it should be shown that large sums are now due by the trustees, to the Everglades drainage district as alleged in the answer; it would not, in our opinion, excuse the failure of the board of commissioners of Everglades drainage district to make up the lists of lands upon which drainage tax has been levied and assessed by statute, and as they have been directed to do in the alternative writ of mandamus herein.

The Legislature determines and fixes the rate and amount per acre of the drainage tax. As we have held in the opinion rendered herein, on the motion to quash, the rate and amount of acreage tax, fixed by chapter 10026, Laws of Florida, Acts of 1925, is the rate which the relators, as holders of refunding bonds, are entitled to have levied and assessed and entered on the tax rolls.

Under the provisions of section 1167, Revised General Statutes, section 1537, Compiled General Laws, the board of commissioners of Everglades drainage district are required to make up the lists of lands upon which the tax is levied and assessed, and certify to the tax assessors of the several counties embraced in the district, to be entered on their respective tax rolls.

The mere fact, if it is a fact, that under the law the trustees of the internal improvement fund have moneys belonging to the Everglades drainage district, or, are indebted to such district, in an amount sufficient to pay all the principal and interest of outstanding bonds of the district, will not, in our opinion, excuse respondents in failing to perform the ministerial duty clearly imposed upon them by section 1167, supra.

There is nothing set up in paragraph 3 which under the law will excuse the respondents from obeying the command of the alternative writ of mandamus. The demurrer, therefore, and the motion to strike this paragraph of the return, must be sustained and the paragraph stricken.

Paragraph 4 of the answer and return undertakes to set up, as a reason for not obeying the mandate of the alternative writ of mandamus, the provisions of paragraph (h) of section 2 of chapter 14717, Acts of 1931. This is the section of the statute making the state treasurer ex officio treasurer of Everglades drainage district, and making him, as such, custodian of all the moneys, securities, and bonds belonging to the Everglades drainage district.

Also providing for the paying out of such funds, upon the warrant of the board of commissioners of Everglades drainage district signed by proper officers of the board.

We find nothing in paragraph 4 of the answer and return to legally prevent or excuse the respondents from obeying the commands of the alternative writ. The demurrer to this paragraph of the answer and return is therefore sustained, and the paragraph stricken.

In paragraph 22 of the answer and return the respondents undertake to show their inability to comply with the command of the alternative writ of mandamus. If the allegations of fact found in the answer are sufficient to...