State v. Livingston

• Decision Date: 12 January 1932
• Citation: 139 So. 360,104 Fla. 33
• Parties: STATE ex rel. DU PONT BALL, Inc. v. LIVINGSTON, Mayor, et al.
• Court: Florida Supreme Court

139 So. 360

104 Fla. 33

STATE ex rel. DU PONT BALL, Inc. v. LIVINGSTON, Mayor, et al.

Florida Supreme Court

January 12, 1932

En Banc.

Original proceeding in mandamus by the State of Florida on the relation of Du Pont Ball, Incorporated, against S.E Livingston, as Mayor of the City of Homestead, and others.

Peremptory writ ordered.

COUNSEL

Shutts & Bowen and Herbert S. Sawyer, all of Miami for relator.

Roberts & Nelson, of Homestead, and Ernest E. Roberts, of Miami, for respondents.

E. J L'Engle, J. W. Shands, and F. P. Fleming, all of Jacksonville, amici curiae.

OPINION

DAVIS J.

This is an original proceeding in mandamus whereby the relator, the holder of matured and unpaid interest coupons of bonds of the city of Homestead, seeks to compel respondents, the mayor and councilmen of said municipality, to pay over to the relator the sum of $3,075.74, which, according to respondents' return on file herein, was, on May 22, 1931, the date of service of the alternative writ, in the interest and sinking fund of said city and applicable to the payment of bonds of the class which relator holds.

It appears from the alternative writ that relator's coupons are from bonds issued by the city of Homestead under chapter 11520, Acts of Special Session 1925. These bonds were issued by said municipality under date of January 15, 1927, in denominations of $1,000 each, with interest coupons bearing interest at the rate of six per cent. per annum, payable semiannually on the 15th of January and July of each year.

None of the coupons which relator holds have been reduced to judgment, but the charater of the city under which they were issued requires the municipality to levy and collect special taxes and assessments, and, when collected, are required by law to be paid into a special fund which is applicable only to the discharge of the coupons and bonds.

It appears from the return filed in this case that the separate fund, so required to be raised and set apart for the payment of the coupons here involved, consists of the sum of $3,075.74, which the respondents admit is in their interest and sinking fund. They also admit that such moneys were to the credit thereof on May 22, 1931, which was the date of service of the alternative writ on the respondents in this case.

Under the alternative writ as amended on October 29, 1931, the only issue left before us is whether or not the relator's motion for a peremptory writ of mandamus should be granted to require the city to pay over to the relator the sum of $3,075.74 which it admits is on hand, and which is conceded to be applicable to the payment of the coupons of bonds of the issue known as 'City of Homestead Improvement Bonds.'

All the authorities we have examined support the conclusion that general creditors of a municipality, whose claims are secured by the general power of taxation, are order in which they demand payment, where order is which they demand payment, where the payment thereof on presentation is authorized by law, and there is a fund on hand out of which the payment is required to be made and which is sufficient for that purpose when the holder having a right to enforce the duty of payment presents his claim. Weaver v. City & County of San Francisco, 111 Cal. 319, 43 P. 972; State ex rel. Marchand v. City of New Orleans, 37 La. Ann. 13; New Orleans v. United States, 49 F. 40 (C. C. A. 5th Circuit); State ex rel. Smith v. Hall, 94 W.Va. 400, 119 S.E. 166; Voorhies v. Mayor, etc., of City of Houston, 70 Tex. 341, 7 S.W. 679, 683; Meyer v. Porter, 65 Cal. 67, 2 P. 884; Williamsport v. Com. ex rel. Blair, 90 Pa. 498; United States v. Village of Kent (C. C.) 107 F. 190; Shelley v. St. Charles County Court (C. C.) 21 F. 699; Meyer v. Widber, 126 Cal. 252, 58 P. 532.

Such a demand upon the municipality, when it has funds applicable for the purpose, gives the holders of the coupons or bonds demanding, upon refusal of their demand, the right to writ of mandamus against the city to enforce the payment over of the available fund, or such part of it as may be sufficient to satisfy the claimant. Meyer v. Porter, 65 Cal. 67, 2 P. 884.

But it is equally well settled that a mere demand under the foregoing rule does not give the party making it a preferred claim against the fund if his demand is refused, or is not acquiesced in by the making of payment in response to it.

A demand gives a right of action to enforce it by legal proceedings; nothing more.

When it is refused, the institution of legal proceedings to enforce it then becomes the controlling factor in determining priorities between different demandants; and it is to the vigilant claimant who seeks the first mandate from the courts to enforce his claim that the priority of payment must be awarded. Meyer v. Widber, 125 Cal. 252, 58 P. 532.

And indeed, such rule appears to be supported by reason as well as authority, because in cases of this kind the writ of mandamus is likened unto an execution at law on a judgment for the demand (City of Chanute v. Trader, 132 U.S. 210, 10 S.Ct. 67, 33 L.Ed. 345), and the writs of mandamus must therefore take priority in the order in which they are served on the respondents.

Thus a respondent receiving the service of such writ is charged with notice that the court issuing it has taken jurisdiction of the subject-matter of that writ, and that to it he must yield such obedience as he may be able to yield at the time of service, or else justify his refusal to do so by an appropriate return. To this extent, the service of a writ of mandamus requiring the payment over of a fund which is the subject-matter of the writ operates as an impoundment of the fund in the hand of the respondent, the further disposition of which is within the control of the court through its judgment. If this were not true, no writ of mandamus relating to, or requiring the payment over of, a fund could be made effective, since it would always be within the power of the respondent to defeat the purpose of the writ by dissipating or disbursing the fund after notice of the writ but before the court's final judgment on the proceeding could be entered.

In this case, the return of the mayor and city council is that the fund in hand has not been paid over to the relator here, for the reason that another alternative writ of mandamus has been granted out of this court commanding them, as respondents, to pay over the funds here involved to another claimant; namely, National Discount Corporation. The latter claim appears to be based on a judgment which has been recovered by National Discount Company against the city of Homestead on certain coupons derived from the same class of bonds as those owned and held by the relator in this case.

So the question to be decided is whether or not the return by the respondent should be held good as an answer to the commands of the alternative writ, or should relator's motion for a peremptory writ be granted; such return to the contrary notwithstanding.

In referring to the other alternative writ of mandamus with which respondents here have been served, as alleged, no details of the other mandamus proceeding are given.

In fact the allegations of the return in this respect are most vague and general; so much so as to suggest to us their absolute insufficiency as a matter of pleading, unless by the reference made we are permitted to take judicial notice of our own records and read into the...