State v. Thursby

• Decision Date: 25 January 1932
• Citation: 104 Fla. 103,139 So. 372
• Parties: STATE ex rel. GILLESPIE et al. v. THURSBY et al.[*]
• Court: Florida Supreme Court

139 So. 372

104 Fla. 103

STATE ex rel. GILLESPIE et al. v. THURSBY et al.^[*]

Florida Supreme Court

January 25, 1932

Commissioners' Decision.

Original mandamus proceeding in the Supreme Court by the State, on the relation of J. W. Gillespie and others, against Ben D Thursby, chairman, and others.

Motion for peremptory writ denied.

COUNSEL Vocelle & Mitchell, of Vero Beach, and H. A Lasseter, of Orlando, for relators.

W. J Gardiner, of Daytona Beach, and H. A. Henderson, of St. Augustine, for respondents.

OPINION

DAVIS C.

This is a case of original jurisdiction wherein it appears that the Legislature of 1931 enacted a law, House Bill No. 1306 (chapter 14776, Laws of Florida 1931, p. 558), abolishing the board of bond trustees of Ocean Shore improvement district, a special taxing district comprising certain territory in Flagler and Volusia counties. Prior to the enactment of this statute, it was the duty of the said board, on or before July first of each year, to make and submit to the boards of county commissioners of said counties an estimate of the amount of money necessary to be raised by taxation against the taxable property is said district, to pay the interest upon and create a sinking fund for the payment of the principal of bonds of the district; that this court, during the present (June) term, in a mandamus proceeding, brought by relators against the said board of bond trustees, held that the provisions of said act, in so far as it sought to abolish the said board of bond trustees, were unconstitutional, and ordered a peremptory writ of mandamus requiring the said board to make and submit an estimate of money necessary to be raised by taxation against the taxable property in said district to pay the obligations of said district due relators as holders of its bonds; and that said board convened, made, and prepared such estimate and submitted the same to the said boards of county commissioners; that the board of county commissioners of Volusia county has levied twelve mills on the dollar against the taxable property of said district in said county, and Flagler county has levied no tax whatever, and that the levy so made in Volusia county is not sufficient to raise the amount required to be raised in said district for the year 1931.

In response to the alternative writ of mandamus issued herein, and which was served on October 31, 1931, the Volusia county officials, who are respondents herein, made their return to the writ wherein they say that the board of county commissioners of said county, on the 28th of August, A. D. 1931, levied a tax of twelve mills on the dollar for the year 1931, on all property in said county, lying and being within said district, for the purpose of paying interest and creating a sinking fund for the retirement of the bonded debt of the district; that no estimate had been furnished or delivered to the said board of county commissioners by the said board of bond trustees before the said levy was made, but that an estimate was made and delivered to the said board of county commissioners by the board of administration of the state of Florida, under and by virtue of the said act of 1931, which had not at that time been passed upon by the court; that the said levy of twelve mills was based upon and computed from an estimate of revenues for said district, which estimate was computed from an estimate made and delivered to the said board of county commissioners of said county, by the board of administration of the state of Florida, and from the records of the several bond issues of said district on file and of record in the office of said board of county commissioners; that said estimate shows anticipated revenues for the said district, stating the amounts for tax redemption, for gas tax and auto transportation, and the amount due to be paid by Flagler county upon the said bonded debt; that it now appears that the figures in said estimate for the gas tax and transportation tax allocated to the district were less than they should have been, that the valuation of the taxable property of the district was underestimated, and that by reason thereof additional sums will be received by said district from these sources of revenue; that the moneys that will be received by reason of the said underestimating, together with the amount reserved for contingencies, will be more than sufficient to provide for loss resulting by incorrect computation of interest due on one series of the bonds, and the failure to include certain interest past due; that the said estimate does not contain an item showing the anticipated tax moneys to be received from the levy of a tax on property in said district lying in Flagler county for the reason that at the time said estimate was made and the said twelve mills tax was levied, by the board of county commissioners of Volusia county, the board of county commissioners of Flagler county had not levied any tax for Flagler county for the year 1931; that on the 28th of August 1931, and within the time authorized and required by chapter 15660, Laws of Florida 1931, Ex. Sess., the board of county commissioners of Volusia county levied all taxes for Volusia county, including said twelve mills tax upon all property of said district within Volusia county, and that the tax assessor of said county prepared three tax rolls for said county, which were completed and turned over to the board of county commissioners at a meeting of such board held on the first Monday in October, A. D. 1931, at which meeting the said county commissioners examined in part the said tax roll, but because of insufficient time did not complete the examination until October 20, 1931, when they indorsed and certified on said three rolls that they had examined them and that they were correct; that immediately thereafter the said tax assessor issued and annexed to one of the said tax rolls his warrant as provided by law, and did immediately deliver one copy of said tax roll to the clerk of the court, one copy to the tax collector of Volusia county, and one copy to the comptroller of the state; that the tax collector of said county had, up to and including the 5th day of November, A. D. 1931, collected from 285 taxpayers, owning property in said district, the sum of $4,499.32, and that tax moneys were being received daily from property owners owning property in the district; that the total value of the taxable property in the district in Volusia county is more than one-fourth of the taxable property for said county, and that 141 pages for the tax roll for 1931 were required to describe it; that notwithstanding the willingness of the said board of county commissioners to levy an additional tax for the purpose of paying the interest and taking care of the sinking fund for the bonded indebtedness of said district, they know of no authority of law or procedure whereby such additional tax may be levied, and, if such authority or procedure was known, there is no fund available whereby the original tax roll could be changed, rewritten, or a supplemental roll prepared. The return contained other allegations which are not necessary to refer to here.

The officials of Flagler county have moved the court to quash the alternative writ, and have also filed a return wherein it is admitted that no tax was levied by the board of county commissioners of that county on the property in said district lying in that county, for the reason (omitting details) 'that the proportionate rate of the contribution of that portion of the said district that lies in Flagler County is 1.76 per cent. of the total contribution that will be required to meet that portion of said Improvement District that lies in Flagler County,' and that the reason that there was no millage levied by the said board of county commissioners for said district was that, based upon estimates, they honestly believed there would be more gas tax distributed to Flagler county for the use of said district than the 1.76 per cent. that was owing by Flagler county's portion for the payment and redemption of said bonds and interest, and that there would be no necessity for levying a millage in said district for that purpose; otherwise they would have willingly made necessary levies.

The relators have moved the court to issue a peremptory writ, the return to the alternative writ notwithstanding, upon the grounds that said return set forth no legal reason why the peremptory writ should not issue, and because they show a clear legal right on the part of relators to the performance of the duties required.

After answer by respondents, in moving for peremptory writ of mandamus, relator admits all well-pleaded averments of respondents' answer. State v. Apalachicola N. R. Co., 81 Fla. 394, 88 So. 310.

In the light of the decision in the case of the State of Florida ex rel. J. W. Gillespie, L. F. Rodgers and James C. Martin, v Ed. Johnson, Chairman, L. O. Upson, J. E. Pierce, C. M. Bingham, and W. H. Courtney, as and constituting the board of bond trustees, etc. (Fla.) 137 So. 126, decided October 17, 1931, it was the duty of the board of county commissioners of Flagler and Volusia counties to levy upon all property in the said district the tax determined by its board of bond trustees for the year 1931, and it was the duty of the tax assessors and collectors of said counties, respectively, to make the assessments and collections of such taxes, unless the county commissioners and tax assessor ceased to have any relation to the tax by reason of the tax rolls having been placed in the hands of the tax collector, the clerk of the circuit court, and the state comptroller prior to the issuance of the alternative writ of mandamus herein. This duty, if it was a duty, was never discharged...