State Ex Rel. Sherrill v. Milam

• Decision Date: 03 February 1934
• Citation: 113 Fla. 491,153 So. 136
• Parties: STATE ex rel. SHERRILL et al. v. MILAM et al.
• Court: Florida Supreme Court

153 So. 136

113 Fla. 491

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

Florida Supreme Court

February 3, 1934

Original proceeding 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 special answers and returns to the alternative writ of mandamus, and on relators' motion to amend the prayer of the alternative writ of mandamus as amended.

Motion granted in accordance with opinion.

Amending writ, 153 So. 125.

See also, 153 So. 100.

COUNSEL Wilson & 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.

After the opinion and judgment of this court filed and entered on November 17, 1933 (153 So. 125), sustaining the general and special demurrers, to the answer and return to the alternative writ of mandamus, the respondents board of Everglades drainage commissioners, and certain of the respondents, tax assessors, filed special returns and answers to the alternative writ of mandamus, as then amended, in which it is alleged that the tax assessment rolls for the years 1932 and 1933 for state and county taxes of the respective counties embraced in the Everglades drainage district, have already been delivered to the tax collectors of the respective counties, and a great bulk of the state and county taxes for each year already collected, and suggesting that, should a peremptory writ issue, the respondents should not be directed to perform any duties looking to the levy of taxes or assessments for the year 1932 in 1933, and that all such duties as the court may require to be performed under said writ should be performed in the year 1934, that being the earliest time when an assessment or levy can be made.

Subsequent to the filing of these special answers and returns, the relators have filed their motion to amend the prayer of the alternative writ of mandamus as amended, so as to require the respondents, board of drainage commissioners of Everglades drainage district, to prepare a list of the lands subject to the drainage tax in Everglades drainage district, lying in each of the counties named in said alternative writ as amended, in accordance with the provisions of section 1167, Revised General Statutes of Florida, and that the several respondent tax assessors be directed to receive such lists for their respective counties, and forthwith, after receipt thereof, enter upon the tax rolls for the year 1934, and before delivery thereof to the tax collectors, to attach the special warrant required by the provisions of section 1168, Revised General Statutes.

In the opinion of this court overruling the demurrer to the alternative writ of mandamus as then amended, we held that the drainage tax for the year 1932 could and should be entered and assessed by the tax assessors of the respective counties involved, on the tax assessment rolls, for the year 1933. This judgment of the court was modified to the extent of allowing the respondents to file an answer or return to the alternative writ as then amended. By reason of the delay incident to the consideration of the legal questions raised in the answers and returns filed, the drainage tax for the year 1932 cannot be entered on the tax rolls for 1933, as shown by the special answers and returns above referred to.

While this case has been pending, and the legal questions raised have been under consideration, this court has decided certain cases involving the remedy in cases resulting in delays somewhat similar to the situation created by the delay in the instant case. In State ex rel. Klemm v. Baskin, Mayor, 150 So. 517, we held that:

'Where a legal right has been timely asserted, and thereafter judicially upheld on appeal which has interrupted its enforcement in original proceedings, judgment may subsequently be carried into effect on remand of case, by appropriate modification of judgment in lower court.'

In the case of ...