State Ex Rel. Woman's Catholic Order of Foresters v. City of Fort Myers

• Decision Date: 07 June 1940
• Citation: 143 Fla. 304,196 So. 705
• Parties: STATE ex rel. WOMAN'S CATHOLIC ORDER OF FORESTERS v. CITY OF FORT MYERS, FLA.
• Court: Florida Supreme Court

196 So. 705

143 Fla. 304

STATE ex rel. WOMAN'S CATHOLIC ORDER OF FORESTERS v. CITY OF FORT MYERS, FLA.

Florida Supreme Court

June 7, 1940

En Banc.

Original proceeding in mandamus by the State, on the relation of the Woman's Catholic Order of Foresters, to compel the City of Fort Myers to assess and levy taxes for payment of interest on city bonds held by relator.

Peremptory writ denied.

COUNSEL

J. Franklin Garner, of Lakeland, and Whitfield &amp Whitfield, of Tallahassee, for relator.

R. E Kurtz and Parker Holt, both of Fort Myers, for respondent.

OPINION

BUFORD Justice.

This is an original proceeding in mandamus in which it was sought to coerce Respondent to assess and levy taxes to produce a fund sufficient to pay certain obligations due the Relator.

The alternative writ alleges in effect that the City of Fort Myers, Florida, did on the 15th day of March, 1924, issue and sell certain 5 1/2% bonds known as 'City of Fort Myers 5 1/2% Sanitary Sewer Bonds' and acknowledged itself indebted and for value received promised to pay to the bearer the principal sum of said bond with interest thereon from date at the rate of 5 1/2% per annum payable semiannually upon presentation and surrender of the interest coupons thereto attached as they severally should mature. That each of the bonds were properly executed by the issuing authority and that each of the bonds were validated by the Circuit Court of Lee County on May 24th; that Relator holds seven of the bonds above named in the amount of $1,000 each, numbered 69 to 75, both inclusive, all of which bonds will mature March 15, 1944; that all of said bonds have coupons attached which mature March 15, 1938, September 15, 1938 and March 15 1939, in the aggregate sum of $577.50. Copy of bonds and coupons are attached.

It is alleged that on the 15th day of March, 1924, the City of Fort Myers being thereunto lawfully authorized, did issue and sell certain bonds designated 'city of Fort Myers 5 1/2% gas plant and main bond'; that by the terms of each of said bonds the City of Fort Myers acknowledged itself indebted and for value received promised to pay to bearer the value of such bond with interest thereon at the rate of 5 1/2% payable semiannually upon presentation of the interest coupons thereunto attached as they severally mature.

Allegations of sufficient facts are made to show that the bonds were properly executed. It is alleged that each of said bonds was validated by decree of the Circuit Court of the Twelfth Judicial Circuit in and for Lee County on the 1st day of May, 1924. Copy of the bond is attached.

It is alleged that Relator is holder of eight of the bonds of that issue in the amount of $1,000 each numbered 54, 55, 73 to 78, both inclusive; that all of such bonds mature March 15, 1944 and that coupons are attached maturing March 15, 1938, September 15, 1938 and March 15, 1939, in the aggregate sum of $660. Copy of one of the coupons is attached.

It is alleged that on the 15th day of March, 1924, the City of Fort Myers did issue and sell bonds designated 'City of Fort Myers 5 1/2% Paving Bonds'; that by the terms of each of said bonds the City of Fort Myers acknowledged itself indebted and for value received promised to pay to bearer the principal sum of said bond with interest thereon from the date thereof at the rate of 5 1/2% per annum payable semiannually upon presentation and surrender of coupons thereunto attached as they severally matured.

Allegations show that the bonds were properly executed and that each of said bonds was validated by decree of the Circuit Court of the Twelfth Judicial Circuit of Florida on the 1st day of May, 1924. Copy of the bond is attached. That Relator is the holder of five bonds of this issue numbered 44 to 46, both inclusive, and 87 and 88, all of which bonds mature March 15, 1944. All of said bonds have coupons attached which matured March 15, 1938, and coupons attached maturing September 15, 1938 and March 15, 1939, in the aggregate sum of $412.50. Copy of the coupons is attached.

It is alleged that the City of Fort Myers being lawfully authorized, did on April 1, 1926, make, issue and sell certain bonds of said City designated 'City of Fort Myers Incinerator Bonds'. That by the terms of each of said bonds the City of Fort Myers acknowledged itself indebted and for value received promised to pay to bearer the principal sum of said bonds with interest thereon from the date thereof at the rate of 5 1/2% per annum payable semiannually upon presentation and surrender of coupons thereunto attached as they severally matured. Allegations show the bonds were properly executed and were validated by decree of the Circuit Court of the Twelfth Judicial Circuit of Florida on the 31st day of May, 1926. Copy of the bond is attached. That the Relator is the holder of three bonds of said issue in the amount of $1,000 each numbered 6, 9 and 10, all of which bonds mature April 1, 1956, and coupons maturing April 1, 1938, October 1, 1938, in the aggregate sum of $150. Copy of coupon is attached.

That being thereunto authorized by law, the City of Fort Myers did on April 1, 1926, make, issue and sell bonds designated 'City of Fort Myers Playgrounds and Recreation Bonds'. That by the terms of each of the said bonds the City of Fort Myers acknowledged itself indebted and for value received promised to pay to bearer the principal sum of said bond with interest thereon from date at the rate of 5% per annum upon presentation and surrender of the interest coupons thereunto attached as they severally matured. Proper execution is shown by allegation of the writ and that each of said bonds is validated by a decree of the Circuit Court of the Twelfth Judicial Circuit of Florida in and for Lee County. Copy of bond is attached. That the Relator is the holder of nine of the said bonds in the aggregate amount of $1,000 each numbered 143 to 145, both inclusive, and 172 to 177, both inclusive, all of which mature April 1, 1956, and coupons attached maturing April 1, 1938 and October 1, 1938, in the aggregate sum of $450. Copy of coupon is attached.

That the City of Fort Myers being thereunto lawfully authorized did on the 1st day of April, 1926, make, issue and sell certain bonds designated 'City of Fort Myers Water System Extension Bonds'. That by the terms of each of said bonds the City of Fort Myers acknowledged itself indebted and for value received promised to pay to bearer the principal sum of said bond with interest thereon from date thereof at the rate of 5% per annum payable semiannually upon presentation and surrender of the interest coupons thereunto attached as they severally matured, and that each bond was validated on the 31st day of May, 1926. Copy of the bond is attached.

That relator is holder of 15 bonds of the said issue in the amount of $1,000 each, numbered 76 to 80, both inclusive, and 286, 287, 393 to 400, both inclusive, all of which mature April 1, 1956, and coupons attached maturing April 1, 1938 and October 1, 1938, in the aggregate sum of $750. Copy of coupons attached.

That the City of Fort Myers being thereunto lawfully authorized did on April 1, 1926, make, issue and sell bonds designated 'City of Fort Myers Sewerage System Extension Bonds'. That by the terms of each of said bonds the City of Fort Myers acknowledged itself indebted and for value received promised to pay to the bearer the principal sum of said bonds with interest thereon from date thereof at the rate of 5% per annum, payable semiannually upon presentation and surrender of interest coupons thereto attached as they severally mature. Allegations show proper execution of the bonds and that each bond was validated by decree of the Circuit Court of the Twelfth Judicial Circuit of Florida on the 31st day of May, 1926. Copy of the bond is attached. That the Relator is holder of forty-eight of that issue of bonds in the amount of $1,000 each, numbered 47, 48, 71 to 75, both inclusive, 558 to 564, both inclusive, 708 to 715, both inclusive, 727 to 751, both inclusive, and 786, all of which bonds matured April 1, 1956. That bonds numbered 727 to 751, both inclusive, have coupons attached which matured April 1, 1932, October 1, 1932, April 1, 1933, October 1, 1933, April 1, 1934, October 1, 1934, April 1, 1935, October 1, 1935, April 1, 1936, October 1, 1936, April 1, 1937, October 1, 1937, and that said bonds numbered 47, 48, 71 to 75, both inclusive, 558 to 564, both inclusive, 708 to 715, both inclusive, 727 to 751, both inclusive, and 786 have coupons attached that matured April 1, 1938 and matured October 1, 1938. That the aggregate sum of said coupons is $9,900. Copy of the coupons is attached. That all of said coupons that have matured and those that will mature during the fiscal years 1938 and 1939 are in the total sum of $12,900.

It is then alleged:

'That under the Constitution and Laws of the State of Florida, including the several laws of which said bonds hereinabove described were issued, it became and was, and still is, the duty of the Respondent, through duly qualified officials for such purposes, to appropriate in the annual budget funds sufficient to pay the past due and current maturing interest of said City, including the interest coupons of your Relator, hereinabove described. It is the further and continuing duty of said Respondent, through duly qualified officials for such purposes, to levy a millage or tax sufficient to produce the amount so appropriated to pay said past due and current maturing interest coupons, including those of the Relator hereinabove set forth.

'11. That said Respondent, City of Fort Myers, Florida, has been in default for seven years in the payment of principal and interest of its outstanding bonds, and

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