State v. Stewart

• Decision Date: 02 May 1905
• Citation: State v. Stewart, 49 Fla. 259, 38 So. 600 (Fla. 1905)
• Court: Florida Supreme Court
• Parties: STATE ex rel. WALKER et al., County Com'rs v. STEWART.

38 So. 600

49 Fla. 259

STATE ex rel. WALKER et al., County Com'rs v. STEWART.

Florida Supreme Court, Division B.

May 2, 1905

Error to Circuit Court, Brevard County; Minor S. Jones, Judge.

Application by the state, on relation of John R. Walker and others county commissioners of Brevard county, for a writ of mandamus to A. A. Stewart.Writ denied, and plaintiffs bring error.Affirmed.

Syllabus by the Court

SYLLABUS

1.Where a board of county commissioners at a regular meeting held on November 3, 1903, adopted a resolution naming certain banks and an individual as fiscal agents of the county, and thereby proposed to pay such fiscal agents 6 per cent. per annum upon county warrants cashed by them and registered by the county treasurer, from the date of issue to the date of payment, as compensation for their services, and where one of said banks accepted the provisions of said resolution, and cashed warrants, and presented an account for services on the basis of 6 per cent. per annum on the amount of warrants so cashed, which account was allowed by the county commissioners, such transaction was an attempt to pay interest, and is not authorized by law.

2.Mandamus will not lie, on the relation of the county commissioners, to compel the clerk to do an illegal act.

COUNSEL

Geo. M. Robbins, for plaintiffs in error.

OPINION

John R. Walker and others, as county commissioners of Brevard county, as relators, filed a petition for an alternative writ of mandamus against A. A. Stewart, as clerk and auditor of the board of county commissioners, alleging, in substance, that at a regular meeting of said board on November 2, 1903, it passed the following resolution, to wit: 'Resolved that the Indian River State Bank of Titusville, the Brevard County State Bank of Cocoa, the Bank of Ft. Pierce of Ft. Pierce, the Planters' Security Bank of Jensen and E. P. Branch of Melbourne are hereby appointed fiscal agents of the county of Brevard and are to discharge the following duties: They are to cash all legal county warrants presented to them at par taking assignments thereof and forthwith present the same to the county treasurer for payment or registration in accordance with chap. 5183[p. 124] Acts of 1903.Where warrants are registered by the county treasurer and returned they shall be presented for payment with[in] ten days after receiving notification from the treasurer that he has funds to meet the same.Such agents shall be entitled as compensation for their services to charge not to exceed 6% per annum upon the warrants cashed by them and registered by the county treasurer from the date of issue to the date of payment;' that the Indian River State Bank of Titusville accepted the provisions of said resolution and did act as fiscal agent for said board of county commissioners of Brevard county during the month of September, 1904, and cashed warrants as such fiscal agents to the amount of $817.44; that on the 4th day of October, 1904, while petitioners were in regular session the said Indian River State Bank presented to said board its account for services for September, 1904, amounting to $4.09, which was approved by said board, and ordered paid out of any money appropriated for general fund; that said Stewart, as clerk and auditor refused to audit said account, and refused to sign and seal the warrant for same, numbered 9,894, which was countersigned and attested by the chairman of the board in open session.A writ of mandamus against A. A. Stewart was prayed for, and by consent the petition was treated as an alternative writ.

A. A Stewart, the clerk and auditor, answered the petition admitted all the facts alleged therein, and for cause why he refused to sign and seal the warrant says that he construes the account of the Indian River State Bank as being for interest upon the warrants cashed by said bank, amounting to $817.44, and that under the decision of this court in the case of National Bank of Jacksonville v. Duval County,34 So. 894, the board of county commissioners have no power to pay interest on warrants when there are funds in the county treasury with which to pay said warrants, and moved the court to quash the writ.The circuit judge granted the respondent's motion to quash the writ, and gave final judgment for said responden...