State v. Sarasota County

• Decision Date: 04 March 1935
• Citation: 118 Fla. 629,159 So. 797
• Parties: STATE et al. v. SARASOTA COUNTY (two cases).
• Court: Florida Supreme Court

159 So. 797

118 Fla. 629

STATE et al. v. SARASOTA COUNTY (two cases).

Florida Supreme Court

March 4, 1935

En Banc.

Separate proceedings by Sarasota County against State of Florida and others. From decrees for plaintiff, the defendants appeal.

Each decree affirmed. Appeal from Circuit Court, Sarasota County Paul C. albritton, judge.

COUNSEL

Henry L. Williford, and James E. Kirk, and Forrest Chapman, all of Sarasota, for appellants.

Winder H. Surrency, of Sarasota, for appellee.

OPINION

DAVIS Justice.

Two appeals have brought up for review certain chancery decrees rendered by the circuit court of Sarasota county validating issues of refunding bonds proposed by Sarasota county. The proceedings and appeals are here under section 5106, C. G S., section 3296, R. G. S., et seq. The chancellor sustained the validity of the bonds in controversy. The state attorney and certain interveners have appealed from that decision. The cases were argued and submitted together and will therefore be discussed and disposed of in a single opinion. They have been heretofore considered by this court upon appeals from earlier decrees, but upon such previous consideration the decrees appealed from were reversed by consent of appellants upon a confession of error. See State ex rel. v. Sarasota County (Fla.) 157 So. 21; State v. Sarasota County (Fla.) 157 So. 22.

Prior to the entry of the earlier decrees, the circuit court had, by appropriate proceedings in accordance with the statute, admittedly acquired jurisdiction of the subject-matter of the suit, namely, the controversy concerning the validity vel non of the bonds. And by virtue of petitioner's compliance with the statute in the premises (section 5107, C. G. L., section 3297, R. G. S.), the political unit of Sarasota county, and the taxpayers and citizens thereof, also became bound by the proceedings and by whatsoever decree might lawfully be rendered therein concerning the particular proposed issues of bonds as to which they were given the right to be heard on the issues involved.

The appeal from the decrees first rendered and reversed on the prior appeals, therefore, brought to this court all parties upon whom said decrees had become binding. This is so because the appeals were but a step in the ultimate decision of the pending controversy as appealed to the state's highest appellate court. Hence, upon reversal and remand of the proceedings first had, the causes became reinstated in the circuit court, not only upon a remittitur and mandate of the Supreme Court that expressly permitted the circuit court to so proceed with the cause anew by permitting such amendments to the proceedings as would make any decree of validation rendered by it one that would be consistent with the law as decided by this court in contemporaneously decided cases, but under a mandatory direction in the mandate requiring the circuit court so to proceed.

Our statute pertaining to bond validiation proceedings treats as parties defendant all of the citizens and taxpayers of the petitioning political unit bringing the proceedings. As such citizens and taxpayers, the statute permits them to appeal from the decree as such. Such privilege of appeal exists, whether the particular individual so appealing has actually appeared in, or exercised his statutory right of special intervention as a nominal party on the record, or not. See sections 5107, 5108, C. G. L., sections 3297, 3298, R. G. S. On this point see, also, the discussion of Mr. Justice Ellis in his separate opinion in Boatright v. City of Jacksonville (Fla.) 158 So. 42, text page 59, wherein the foregoing interpretation of the statute is emphasized with a statement of the reasons therefor.

So, as we have recently held in a similar case to this involving the validation of certain refunding bonds in Citrus county after reversal by this court of an earlier decree with respect to the same bonds (State v. Citrus County [Fla.] 158 So. 705, opinion filed January 1, 1935), a circuit court's jurisdiction over citizens and taxpayers as defendants in a bond validation proceeding, when once lawfully acquired by a compliance with the statutory modes of obtaining such jurisdiction, is not thereafter to be considered lost until the proceedings are either abandoned or dismissed, or the cause has proceeded to a final adjudication on its merits and the decree thereafter made conclusive by lapse of time or affirmed or otherwise made conclusive on appeal.

The case of Jackson Lumber Co. v. Walton County, 95 Fla. 632, 116 So. 771, cited as authority to the contrary, in not in point here. In this case, the subsequent proceedings had in the lower court have been limited to the particular bonds heretofore brought in controversy in the Supreme Court on the previous appeal. By that appeal all citizens and taxpayers of Sarasota county became and continued bound as parties, when and after the cause was reversed and remanded to the circuit court for the purpose of having the proceedings so amended and therein revised as to conform to the appellate court's expressed opinion as to the law of the case. That opinion required the deletion of certain features of the basic resolution found contrary to law in order that a decree of validation of the bonds as so revised might be legally arrived at and entered by the circuit court in due course of procedure, without the necessity of instituting an entirely new bond proposal and validation proceeding thereon.

We therefore hold in this case that the procedure followed in the court below after remand of the causes for further consideration after reversal upon confessions of error on the prior appeals was in conformity with law and not invalid for want of jurisdiction as appellants now contend on the present appeals. And, in so far as such subsequent proceedings involved rulings that were discretionary with the chancellor, such as the allowance or denial of further time for the filing of pleadings and the fixing of dates for further hearings, we find no such abuse of discretion as would be sufficient to require reversals of the decrees on that score alone.

Whether or not the judge as a mere citizen and taxpayer of Sarasota county was thereby disqualified to entertain the proceedings and render the decrees that were entered herein should have been directly tested by mandamus against the judge to compel him to enter of record the required statutory certification of his own alleged disqualification if he were disqualified on that ground, or by prohibition against such judge to restrain him from all attempted further proceedings in the cases as a supposedly qualified judge therein.

The statute of 1933 (chapter 16053, section 4155(2), C. G. L. 1934, Supplement) forbids conateral attacks and assignments of error on appeal that undertake to challenge the qualification of a judge who has affirmatively held himself not disqualified and who, without the intervention of any direct attack on his right to further proceed with the cause to a final decree, has so proceeded and has duly entered a final decree in such cause. Only an order of disqualification duly entered, not an order refusing to approve a suggestion for disqualification in a cause, is now subject to being assigned as error and reviewed upon an appeal from that order or from the final decree in the cause. See State ex rel. Rembrandt Corp. v. Thomas, Circuit Judge (Fla.) 157 So. 337. Nor does it appear that the circuit judge is disqualified in the present case if such were not the rule. See State ex rel. Elston Bank & Trust Co. v. Tedder (Fla.) 159 So. 26 (opinion filed January 29, 1935).

We now pass to the merits of the decrees themselves. In this connection we are pleased to observe that the state attorney of the Twenty-seventh judicial circuit with most commendable zeal, and with that praiseworthy devotion to the duty imposed upon him by the statute (section 5107, C. G. L., section 3297, R. G. S.) to defend against the improvident validation of possibly invalid proposed bonds, has raised on the record and personally argued before the circuit court and before this court, every essential proposition of law or fact that the circumstances have suggested to him as an available defense against the granting of the petitioner's prayers for favorable decrees in the premises.

Under the statute just adverted to, it is the duty of a state attorney upon whom process has been effectuated in a bond validation proceeding, to carefully examine the petition and if it appears to him, or if he has any reason to believe that said petition is defective, insufficient, or untrue, or if, in his opinion the issuance of the bonds in manner and form as proposed, is not legally authorized, to make such defense to the petition as to him shall seem proper. Acting pursuant to such statute, the state attorney, together with certain interveners in the present cases, has interposed and argued objections on the merits of the validity of the proposed bonds, which we may summarize as follows: (1) That it affirmatively appears that the issues of refunding bonds sought to be validated places an additional or increased burden upon the taxpayers of Sarasota county, without an election, in violation of amended section 6 of article 9 of the state Constitution; (2) that the provisions of resolution of the county commissioners of Sarasota county for the issuance of said refunding bonds, the terms and conditions thereof, and the manner in which they are to be exchanged and the provisions for the payment thereof, either as originally adopted, or as subsequently amended pursuant to the holding of the Supreme Court, are beyond the scope of chapter 15772, Acts 1931, Ex. Sess.. commonly called the 'General Refunding Act of...