State Ex Rel. Wilson v. Cone

• Decision Date: 06 October 1937
• Citation: 130 Fla. 748,178 So. 869
• Parties: STATE ex rel. WILSON et al. v. CONE, Governor, et al. (Gadsden County Case).
• Court: Florida Supreme Court

178 So. 869

130 Fla. 748

STATE ex rel. WILSON et al. v. CONE, Governor, et al. (Gadsden County Case).

Florida Supreme Court

October 6, 1937

En Banc.

Original mandamus proceeding by the State of Florida, on the relation of A. L. Wilson, Chairman, and others, constituting the Board of County Commissioners of Gadsden County, Fla., against Fred P. Cone, and others, constituting the Board of Administration of the State of Florida.

Motion to quash alternative writ denied, and motion for peremptory writ denied; the court being equally divided.

BUFORD and BROWN, JJ., dissenting in part, and ELLIS, C.J dissenting.

COUNSEL Gregory & Towles, of Quincy, for relators.

Cary D. Landis, Atty. Gen., H. E. Carter, J Compton French, and W. P. Allen, Asst. Attys. Gen., J. Velma Keen, of Tallahassee, and A. Frank O'Kelley, Jr., of Perry, for respondents.

Pleus Williams & Pleus, of Orlando, amici curiae.

OPINION

TERRELL, Justice.

This is a companion case to State of Florida ex rel. O. J. Harrell et al., as Board of County Commissioners of Washington County, v. Fred P. Cone, J. M. Lee, and W. V. Knott, et al., as State Board of Administration, 177 So. 854, decided this date. There is this difference in the factual situation. In the latter case, it was shown that Washington county had been reimbursed under chapter 15659, Acts 1931 (Ex.Sess.) for all the funds it had advanced to the state for the construction of state roads therein, and that the act relied on, chapter 17967, Acts 1937, amended chapter 15659, by requiring that henceforth all funds accruing to said county be placed to the credit of its Road and Bridge Fund for the repair and construction of roads in the county.

In the present case, it is shown that Gadsden county has not been reimbursed under chapter 15659, Acts 1931, (Ex.Sess.), for all the moneys it advanced to the state for the construction of state roads therein, but that there exists a surplus to the credit of the county over and above that required to pay interest and retirement on its indebtedness incurred in behalf of the state for the construction of state roads. The act relied on in this case, chapter 15890, Acts 1933, amends chapter 15659, by requiring that said surplus only be paid to the Board of County Commissioners of Gadsden county for 'use in the construction and maintenance of public roads within such County, or such other County purpose as said Board of County Commissioners may by resolution determine.' Section 1.

In our view, that part of chapter 15890 which authorizes the Board of County Commissioners to use any part of the surplus transferred to it for 'such other County purpose as said Board of County Commissioners may by resolution determine,' section 1, is invalid and cannot be enforced because it attempts to divert the proceeds of a state tax to a county purpose contrary to the purpose and intent of chapter 15659, Acts 1931 (Ex.Sess.), by which it was imposed. It is accordingly eliminated. In so far as allocated to the Board of County Commissioners for 'use in the construction and maintenance of public roads' within Gadsden county, the act is good and enforceable because consistent with the purpose of the parent act.

All other questions raised are similar to those presented in State of Florida ex rel. O. J. Harrell et al., as Board of County Commissioners of Washington County, v. Fred P. Cone, J. M. Lee, W. V. Knott et al., as State Board of Administration, decided this date, and are concluded by what we said in that case.

It follows that the motion to quash the alternative writ is denied, and, because this results in an equal division, the motion for peremptory writ is denied.

It is so ordered.

WHITFIELD and CHAPMAN, JJ., concur.

ELLIS C.J., dissents.

BROWN and BUFORD, JJ., dissent in part.

CONCURRING & DISSENTING

BUFORD, Justice (dissenting in part and concurring in part).

I concur in the conclusion reached in the opinion prepared by Mr. Justice TERRELL and differentiate this case from the one treated in my dissenting opinion in the companion case of State of Florida ex rel. O. J. Harrell et al., as and Constituting the Board of County Commissioners of Washington County, Florida et al., v. Fred P. Cone, J. M. Lee and W. V. Knott, as and Constituting the Board of Administration of the State of Florida, etc., 177 So. 854, filed at this Term of Court, and other cases involving distribution to counties which have received all of, or more than, that authorized by chapter 15659, Acts of 1931 (Ex.Sess.).

The provisions of chapter 15659, supra, contemplated that only that part of the money arising from the collection of the second gas tax which was required to reimburse each county, respectively, for roads constructed which were taken over by the state as a part of the State Road system, or funds or bonds advanced by the county to the State Road Department to aid in the construction of such state roads was authorized to be placed in the 'State Roads Distribution Fund' and turned over to the state treasurer as ex officio treasurer of the counties. See subsection (b) of section 8, chapter 15659, supra. Therefore, the only part of the second gas tax which was authorized to go into the possession or control of, or to be administered by, the State Board of Administration, was that part of the fund which was directed to be paid over to the state treasurer as ex officio county treasurer. See first paragraph of section 9 of chapter 15659, supra, which definitely so limits the application in the following language:

'All moneys provided for hereunder to be credited to the various counties of the state and so paid to the State Treasurer as ex officio county Treasurer shall be administered by the Board of Administration, as provided by law.'

All the remainder of the fund was definitely appropriated to the State Road License Fund to be expended by the State Road Department in the construction of state roads in the respective counties. See sections 8 and 9, chapter 15659, supra.

So the amount of the appropriation payable to or for the direct benefit of the counties, respectively, was limited to the amount found and certified to be due each county, respectively, for 'moneys contributed for the construction of State roads' as defined in the act.

It follows that when the amount so found and certified to be due any country is shown to have been turned over to the state treasurer as ex officio county treasurer, there then remains nothing more of the fund authorized to be administered by the State Board of Administration or to be turned over to such county. If any additional part of the second gas tax should be transmitted to the Board of County Commissioners or to the state treasurer as ex officio county treasurer, it would be without authority of law to be found in chapter 15659, sup...