Thomas v. Carlton

• Decision Date: 13 September 1932
• Citation: 106 Fla. 648,143 So. 780
• Parties: THOMAS et al. v. CARLTON, Governor, for Use and Benefit of SPECIAL ROAD AND BRIDGE DIST. NO. 1 OF ALACHUA COUNTY.
• Court: Florida Supreme Court

143 So. 780

106 Fla. 648

THOMAS et al. v. CARLTON, Governor, for Use and Benefit of SPECIAL ROAD AND BRIDGE DIST. NO. 1 OF ALACHUA COUNTY.

Florida Supreme Court

September 13, 1932

Suit by Doyle E. Carlton, as Governor of the State, for the use and benefit of Special Road and Bridge District No. 1 of Alachua County, against W. R. Thomas and others, individually, and as members of the Board of Bond Trustees of Special Road and Bridge District No. 1 of Alachua County, and others. From an order granting in part plaintiff's motion to strike out certain parts of the answers, defendants appeal.

Affirmed in part, and reversed in part, and cause remanded.

BROWN J., dissenting. Appeal from Circuit Court, Alachua County; A V. Long, Judge.

COUNSEL

Baxter & Clayton, of Gainesville, for appellants.

Adkins & Richardson, of Gainesville, for appellee.

OPINION

PER CURIAM.

This suit was instituted by Doyle E. Carlton, as Governor, for the use and benefit of special road and bridge district No. 1 of Alachua county, Fla., against the members of the board of bond trustees of said district, individually and as members of the board, and also against the sureties on the bonds of said trustees. The bill of complaint alleges that the said special road and bridge district was created by chapter 7414 Special Laws of Florida 1917; that, by the terms of said chapter and acts amendatory thereto, the board of bond trustees therein provided for was to have supervision of all roads and bridges within the district; and use of moneys paid into the general road fund or arising from any levy for general road purposes, collected within said district for construction, repairs, upkeep, and maintenance of said road and for payment of incidentals of said board; and it was further provided that moneys received by said board, either as proceeds of bonds or from the general road fund, should be turned over to the said board, and that said board should have complete and absolute control of moneys so received; that said board of bond trustees received into their custody and control large sums of money representing the proceeds from the sale of bonds, and, in addition thereto, received and distributed large sums of money from the general road fund; and that 'a large part of said bond fund and other large sums received by the said Defendants, after their election and qualification as members of said Board of Bond Trustees, as herein alleged, and while so acting and in part constituting a part of the proceeds derived from the sale of said bonds, and part constituting moneys received by said defendants from the general road fund, remain by the said defendants * * * unaccounted for, and the said moneys last referred to have been lost in part by the misappropriation thereof by some one or more of said defendants and in part by the negligence of said defendants as said board of Bond Trustees in handling of said funds'; that said chapter 7414 also contained a section which provides as follows:

'The Board of Bond Trustees shall choose one of its members as Chairman and the one so chosen shall serve as Chairman until the next election or selection of a member. That all moneys paid out by said Trustees shall be only upon the order of the Board duly recorded in its Minute Book, which record shall show the negative and affirmative vote on such order. Every voucher issued under the provisions of this section shall be in such form as the Board shall adopt, each voucher to be signed by the Chairman or acting Chairman and audited and certified as being correct by the clerk or auditor of said Board before any depository shall pay such voucher' (section 16),

--and that, because of the failure of the defendants to carry out the provisions of said section, certain of moneys belonging to said district have been misappropriated and lost; that said board set up and created and continued in force a proposed account known and designated as 'paymaster's account' through which moneys in the hands of the said board, by virtue of their office, were paid out, expended, and disbursed in a manner not authorized by law and without warrant or authority of law by means of purported vouchers issued to said proposed account; and that, because of and on account of said method of paying out funds intrusted to said board, there has been 'misappropriated and lost' to the said road district large sums of money. Complainant in his bill prays for an accounting of all moneys disbursed by said bond trustees and of the administration of the funds coming into their hands, as members of said board, and that, as to any balance found owing and payable by them, payment thereof be decreed by the said defendants and their sureties; that the court determine how much of the money found due upon an accounting 'which has been and which remains unaccounted for as due and owing to the said district as the proceeds from sale of bonds issued by said district, and how much money, if any, is due and owing to the said district as and for general road fund moneys, including taxes collected and known as gasoline tax,' and for general relief. The board trustees, individually, and as members of the said board, in their answer to the bill of complaint, denied 'the right and authority of Doyle E. Carlton, as Governor of the State of Florida, to bring this suit,' and said that the suit, 'if brought at all, should be brought by the state treasurer of the state of Florida, or by the board of county commissioners of Alachua county, Florida, or by both the state treasurer and said Board of County Commissioners, or by special road and bridge district Number One of Alachua county, Florida, which is a body corporate under chapter 7414, Sp. Acts 1917, and authorized to sue and be sued.' It was further averred that the conditions of the several bonds prescribed by section 4, of chapter 7414, which provides that the bonds shall be payable to the Governor of the state of Florida and to his successors in office and conditioned for the faithful performance of their duties, and that they be approved by the board of county commissioners; and it is denied that the bonds are so conditioned as alleged in the bill of complaint. Further answering the bill, the said defendants, in paragraph 18 of their answer, averred:

'That the only moneys which have been lost or misappropriated or unaccounted for which came into their hands as Bond Trustees for said district, are certain moneys which were embezzled or taken by one Henry L. Baker, who was, for a long period of years an engineer for the said Special Road and Bridge District Number One, and its pay-master. That the said Henry L. Baker has been indicted for embezzlement or larceny of said funds or of part of same, and has been arraigned and plead guilty and sentenced by this Court to a term of four years in the state penitentiary or prison farm at Raiford, Florida. And these defendants further say that sections 10 and 13 of the said chapter 7414, Sp. Acts 1917, of the Legislature of the State of Florida, and other sections of said chapter and Acts amendatory thereto, require this Board to employ some competent and experienced road engineer to keep the roads of said district in repair and to make plans and specifications covering roads and bridges in this district, and to superintend the entire execution of contracts for the construction of said roads. And these defendants further say that the said Henry L. Baker has been connected as such engineer with the said district and performing the duties required of him by the laws of this state practically all of the time since the creation of the said district, either as engineer or assistant engineer, with the exception of possibly two years. And the defendants say that the said Henry L. Baker was employed by the said district in the years, 1924, as engineer, and that these defendants, to-wit: W. R. Thomas, E. L. Johnson and J. F. Haynsworth, in the selection of the said engineer, exercised every available care and caution in the employment of him; that he was born and reared in Alachua County, Florida, and came from good parentage; that in the World War he entered the United States Army and soon became a Major in said Army; and that these defendants had the utmost faith and confidence in the integrity, loyalty and patriotism of the said Henry L. Baker.'

Said defendants further, in paragraph 18a of their answer, said:

'That said district, from its organization, kept regularly comployed a clerk or auditor in accordance with the provisions of said chapter 7414, and said clerk or auditor has been constantly on duty performing the duties prescribed by the district, that of checking payrolls, keeping account of all moneys belonging to said district and doing in general all clerical and auditing work. And the defendants further say that the books, records, vouchers, documents, etc., of said district were audited at regular intervals by the said clerk or auditor and were also audited at regular intervals by the auditors for the state of Florida; and that these defendants were regulary advised by the clerk or auditor of said district and by the various state auditors as said state auditors made an audit of said district that all accounts of said district were in balance, and all moneys coming into the hands of the defendants as trustees for said district duly accounted for and properly paid out. And the defendants further say that as an additional precaution and in safeguarding the interests of said district they have required of the clerk or auditor for said district bond for the faithful performance of his duties as such clerk or auditor.'

It is also averred that said chapter 7414, § 16, provides as follows:

'It is further provided that a...