State Ex Rel. Sherrill v. Milam

Decision Date07 April 1933
Citation153 So. 100,113 Fla. 491
PartiesSTATE ex rel. SHERRILL v. MILAM et al.
CourtFlorida Supreme Court

As Amended May 17, 1933.

En Banc.

Original proceeding in mandamus by the State, on the relation of J. H Sherrill and another, against Marcus A. Milam, and others constituting the Board of Commissioners of the Everglades Drainage District, and others.

Motion to quash alternative writ of mandamus as amended denied, and respondents allowed sixty days to answer.

See also, 153 So. 125; 153 So. 136.

WHITFIELD and BROWN, JJ., dissenting in part.

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

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

OPINION

CAMPBELL Circuit Judge.

On petition filed in this court by the relators, October 1, 1932, an alternative writ of mandamus, issued, commanding the respondents, members of the board of commissioners of Everglades drainage district, to forthwith comply with the provisions of section 1167, Revised General Statutes of Florida, by meeting, as therein required, and making, certifying, and forwarding to the tax assessors of counties lying, in whole or in part, in said Everglades drainage district, lists of the lands in each of said counties, within such district, subject to drainage tax for the year 1932. In fixing the amount of such drainage tax per acre, they were directed to apply the rate of acreage tax provided for in chapter 10026, Laws of Florida, Act of 1925.

The respondents, tax assessors of the several counties, named in the said alternative writ, were commanded to receive the said lists prepared by the board of commissioners of Everglades drainage district, for their respective counties, and to forthwith enter, upon the tax rolls of such counties, the drainage tax assessments as shown on such lists for the year 1932, against the land therein described. Should the respondents fail to comply with the commands of said alternative writ, they and each of them were directed to show cause, on October 8, 1932, why they refused to do so. On the return day, named in the alternative writ of mandamus, the respondents, members of the board of commissioners of Everglades drainage district, filed a motion to quash the same. On the same day the respondents, tax assessors, severally made return to the alternative writ of mandamus, some of them filing motions to quash, others filing motions to strike, while others filed answers or other special returns, each setting up his reason for not complying with the command of the writ, by performing the acts therein required to be performed.

The question raised by the tax assessors in their several returns to the alternative writ of mandamus is the propriety and legality of requiring such tax assessors to withhold the state and county tax assessment rolls, from the tax collectors, of their respective counties, pending the adjudication of the propositions involved in this proceeding. When oral arguments were heard in this cause, we made an order, so modifying the alternative writ of mandamus, as to permit the respondents, tax assessors, to deliver the state and county assessment rolls for the year 1932 to the tax collectors of the counties affected, on November 1st, as provided by the statute, reserving all other questions involved, for further consideration and determination. State ex rel. v. Everglades Drainage District et al. (Fla.) 144 So. 655.

Upon motion of the relators, at the hearing on oral argument, the alternative writ of mandamus was, by leave of the court, amended, by inserting another paragraph, designated as paragraph '4-a.' All motions, answers, and other special returns, made by the several respondents to the original, are considered as addressed to the alternative writ of mandamus as amended.

All the questions necessary to the determination of the propositions involved in the returns of the several respondents are apparently raised in the motion to quash the alternative writ of mandamus as amended, filed by the respondents, members of the board of commissioners of Everglades drainage district. In this motion to quash, the respondents question the sufficiency of the allegations of fact contained in both the alternative writ and the petition as amended to have authorized the issuance of such alternative writ, and to warrant the granting of a peremptory writ of mandamus.

The allegations of the alternative writ of mandamus as amended so fully and completely set forth the facts upon which the relators base their cause, as also the statutory enactments, which they assert authorize the relief sought on the facts alleged, we think it might be advisable to quote these allegations in full, even though it may appear to render this opinion unreasonably long. We also think it would not be amiss to quote the grounds of the motion to quash, in order that the contentions of each of the parties may be made clearly to appear. However, we will only set out in this opinion the substance of each document pertinent to a full consideration of the questions involved.

After the allegations of the alternative writ of mandamus as amended, identifying the Everglades drainage district as a statutory subdivision of the state of Florida for governmental purposes, the pertinent allegations are, in substance, as follows:

That by chapter 6456, Laws of Florida, Acts of 1913, Everglades drainage district was established and its boundaries defined and provision made for its government by a board of commissioners, composed of five state officials, with certain powers, including the power to construct and maintain a system of canals, ditches, etc., for the drainage of the lands embraced within the defined boundaries, and the power to borrow money and issue bonds therefor. That by section 5 of the act provision was made for the annual assessment of an acreage tax, and by section 6 of the act it was provided that the proceeds of such tax were to be used for the construction and maintenance of works, the purchase of necessary land and personal property; to the repayment of loans and the interest thereon; to the creation of a sinking fund for the retirement of the bonds that the board might issue, and the payment of interest thereon. That sections 8 and 9 of the act defined the duties of the board of commissioners of Everglades drainage district, and the tax assessors, with respect to the listing and assessing of the lands within the district for drainage tax. That by the provisions of section 19 of the act the board of commissioners were empowered to borrow money on permanent loans, and to issue and sell, in the corporate name of the board, negotiable coupon bonds of the district in the aggregate amount of not exceeding $6,000,000. That by section 20 of the act the denominations of the bonds were fixed, and the rate of interest and place of payment were provided for. That by section 21 the manner of the execution of the bonds and certain recitations the bonds should include were fixed. That by section 23 of the act it was provided that said act should, without reference to any other act of the Legislature of Florida, be full authority for the issuance and sale of bonds provided for in the act, and that in said section 23 there was also a provision as follows: 'The provisions of this Act shall constitute an irrepealable contract between the said Board and said Everglades Drainage District, and the holders of any bonds and the coupons thereof, issued pursuant to the provisions hereof. Any holder of any of said bonds or coupons may either at law or in equity by suit, action or mandamus enforce and compel the performance of the duties required by this Act of any of the officers or persons mentioned in this Act in relation to the said bonds, or to the collection, enforcement and application of the taxes for the payment thereof,' which quoted provision, it is alleged, is still in full force and effect in respect to all outstanding bonds of the said Everglades drainage district. That under the provisions of section 24 of the act provision is made that the state treasurer, as custodian of the funds belonging to the board of commissioners of Everglades drainage district, out of the proceeds of the taxes levied and imposed by the act, and out of any other moneys in his possession belonging to the board of drainage district, so far as necessary to set apart and appropriate for the purpose, to apply such moneys to pay the interest on the bonds as the same fell due, and at the maturity of said bonds to pay the principal thereof out of said money, 'and there shall be and there is hereby created a sinking fund for the payment of the principal of the said bonds, and the said Board shall set apart and pay into such sinking fund annually out of the taxes levied and imposed by this Act, and the other revenue and funds of the said District, at least two per cent of the amount of bonds outstanding. The said sinking fund for the payment of the principal of said bonds shall not be appropriated to any other purpose than that herein specified.' That no bonds were issued by the board of commissioners of Everglades drainage district under the provisions of section 19 of the act until after an amendment thereof by section 10 of chapter 6957, Laws of Florida, Acts of 1915, which provided that the amount of bonds issued and outstanding under the act should not at any time exceed $3,500,000 principal, with the added provision that nothing contained in such amended section 19 should be a limitation upon the right of the Legislature to authorize additional bonds of said board payable from drainage tax...

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