State Ex Rel. Suwannee River Bridge Co. v. Sholtz

• Decision Date: 05 February 1935
• Citation: 119 Fla. 460,158 So. 812
• Parties: STATE ex rel. SUWANNEE RIVER BRIDGE CO. v. SHOLTZ et al.
• Court: Florida Supreme Court

158 So. 812

119 Fla. 460

STATE ex rel. SUWANNEE RIVER BRIDGE CO. v. SHOLTZ et al.

Florida Supreme Court

February 5, 1935

En Banc.

Mandamus by the State of Florida, on the relation of the Suwannee River Bridge Company, against David Sholtz and others, as and constituting the Board of Administration of the State of Florida, and others. On demurrer to the joint and several return of respondents, and on motions to strike certain portions of the return.

Motions to strike granted. Demurrer to return sustained.

COUNSEL

Giles J. Patterson, of Jacksonville, for relator.

Cary D Landis, Atty. Gen., Robert J. Pleus, Asst. Atty. Gen McCollum & Howell, of Bushnell, and Hull, Landis & Whitehair and D. C. Hull, all of De Land, for respondents.

T. M. Shackleford, Jr., of Tampa, amicus curiae.

OPINION

DAVIS Justice.

In earlier proceedings in this case an amended alternative writ of mandamus was held good. See State ex rel. Suwannee River Bridge Co. v. Sholtz, 114 Fla. 135, 154 So. 871. The case is now before us again on demurrer to the joint and several return of the respondents and on a motion to strike certain portions of the return.

The motion to strike paragraphs 2, 3, 4, 11, 12, 13, 14, and 15 of the return of the state board of administration and the motion to strike paragraphs 1, 2, 3, 7, 8, and 9 of the return of the board of county commissioners of Sumter county should be granted on the authority of State ex rel. Rempsen v. Smith, 105 Fla. 368, 141 So. 318, wherein it was held all facts sufficiently alleged in an alternative writ of mandamus not specifically denied are admitted to be true, and that a return containing mere averments of lack of knowledge of the truth of the averments of an alternative writ presents no material issue, and may be disregarded. See, also, Rountree v. State ex rel. Georgia Bonds & Mortgage Co., 102 Fla. 246, 135 So. 888.

From the amended alternative writ it is made to appear that the relator, as the holder of 33 matured Sumter county highway bonds and 281 interest coupons of said bonds, seeks peremptory relief in the form of a mandatory writ for the payment to it of the sum of $39,840, to cover the principal and interest of its obligations, out of any moneys in the hands of the state board of administration derived from ad valorem tax proceeds collected by Sumter county for highway bond purposes and remitted to the state board of administration pursuant to chapter 14486, Acts 1929, Ex. Sess., to be disbursed for debt service requirements of Sumter county as provided by that act.

That the relator's bonds and coupons are long in default is not denied by the respondents. And that the state board of administration failed to take any action whatsoever toward providing for payment of relator's demands other than to accumulate and hold in its possession all ad valorem tax remittances received by it, as well as gasoline taxes credited to the account of Sumter county, in a common fund from September 9, 1932, until February 17, 1933, when it sent a check to Hanover Bank & Trust Company of New York to pay coupons maturing July 1, 1932, is likewise admitted to be true.

We therefore have a situation presented by the record wherein it is made to appear that there is in the hands of the state board of administration a disbursable fund which consists in large part of certain ad valorem tax moneys specifically levied and raised to pay the bonds of which relator's demands are a part, which ad valorem tax moneys, if now segregated by the state board of administration from other funds in its hands not subject to being reached by a writ of mandamus brought under the 'first come, first served' rule by a bondholder, may nevertheless be ample and sufficient to pay what...