Thursby v. Stewart

• Decision Date: 23 December 1931
• Citation: 138 So. 742,103 Fla. 990
• Parties: THURSBY et al. STEWART v. STEWART. STEWART v. THURSBY et al.
• Court: Florida Supreme Court

138 So. 742

103 Fla. 990

THURSBY et al. STEWART v. STEWART. STEWART v. THURSBY et al.

Florida Supreme Court, Division B.

December 23, 1931

Commissioners' Decision.

Suit by Isaac A. Stewart against Ben D. Thursby and others. From an order granting second application for a temporary injunction the defendants Ben D. Thrusby and others, individually and as constituting the Board of County Commissioners of Volusia County, Samuel D. Jordan, Cleark of the Circuit Court and ex officio Clerk of the Board of Conty Commissioners of Volusia County, for themselves and for the other defendants appeal from an order dissolving the temporary injunction and from an order denying the first application for a temporary injunction, the complainant, Isaac A. Stewart, appeals.

Order granting temporary injunction limited in effect, and, as modified, affirmed; order dissolving injunction reversed; and order in accordance with opinion on appeal from order denying first application for temporary injunction.

See also, 137 So. 7.

Syllabus by Davis, C.

SYLLABUS

1. The granting, continuance, and modification of temporary restraining orders are largely discretionary, and the rights of the general public therein should be considered.

2. Before granting a temporary injunction or restraining order without notice, the court should be satisfied that a clear case is made by the bill therefor, and also that it has been clearly made to appear that it is a case of urgent necessity and one in which irreparable mischief will be produced if the aid of the Court is denied.

3. Not only must the allegations in the bill for an injunction be clear, direct, and positive, but they must be verified by an affidavit, which must also be direct and positive; and, where any of the material allegations in the bill are stated upon information, there should be annexed to the bill the additional affidavit of the person from whom the information is derived, verifying the truth of the information thus given.

4. While a second application for an injunction, when based upon the same evidence or upon evidence which should have been presented upon the first application will generally be denied, it being a matter in which judicial discretion should be exercised, a court will not be held in error in granting a second application if a clear case is presented.

5. To the granting of every temporary injunction, two essential conditions must prevail. The bill must allege facts which appear sufficient to constitute a cause of action or ground for injunction, and on the full showing made from both sides it must appear in the light of the cirucmstances that the injunction is necessary to protect the legal rights of the plaintiff pending the litigation.

6. A citizen and taxpayer may enjoin an unauthorized expenditure of public money.

7. Equity has jurisdiction to enjoin the assessment and collection of an illegal tax levied upon real estate, which if assessed and collected, will cast a cloud over the title of such real estate.

8. Where there is no constitutional provision making an expense chargeable to a county, it must be for a county purpose in order to justify the Legislature in authorizing a county to resort to taxation to defray it.

9. The Constitution does not define or amplify the term 'county purposes' for which counties may be authorized 'to assess and impose taxes,' and the Legislature, in exercising its appropriate lawmaking functions, may determine what is a 'county purpose,' and the courts are not authorized to render such determination ineffectural, unless some provision of the Constitution is violated, or unless the particular enactment can have no legal or practical relations whatever to any 'county purpose.'

10. A statute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it can be pointed out.

11. County commissioners have only such authority as is conferred by statute. Administrative duties pertaining to the affairs of a county may be conferred by law upon officers other than county commissioners.

12. The power of Legislature to pass laws creating county officers, other than those provided for in the Constitution, is absolute unless restrained by some constitutional provision.

13. All persons by authority of law intrusted with the receipt of public money, or through whose hands such money may pass to the treasury, are 'public officers,' whether the service be general or special, transient or permanent.

14. A proper appeal, duly filed and recorded as required by law, gives the appellate court jurisdiction of the cause and also of the appellant and appellee.

15. All parties to a decree, which is in law and in fact joint, must unite in an appeal from it, and, if any of such joint parties refuse, the others may take the appeal in the name of all the parties aggrieved, and have summons and serverance as to the recusant joint parties.

16. It is a general rule that, when an appeal is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone. The authority of the lower court terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal, until the appeal is heard and determined or unless otherwise authorized by the appellate court.

17. Where the defendants are so connected that the rights of one cannot be determined without affecting the rights of the others, and an appeal is lawfully taken by one defendant, the trial court pending the appeal cannot ordinarily take any steps in the case.

18. A supersedeas is not essential to the acquisition of or to preservation of appellate jurisdiction.

Syllabus by Whitfield, J.

1. The legislative act designated as Senate Bill No. 910, chapter 15557, Acts of 1931, is in the nature of a judicial decree.

2. The Legislature cannot exercise judicial functions. A legislative command in the nature of a judicial decree that county funds which have been appropriated for payment to a specific payee shall be paid to a different payee, without anything in the act to show the right of the new payee or that the payment required to be made is for a lawful county purpose, is not contemplated by the Constitution.

3. If it be assumed that chapter 15557 may be shown to be valid by reference to chapter 15560, the latter act violates section 25, article 3, Constitution, in that, though it may have reference to a county purpose, yet it is a special law, not relating to a university or the public schools or to a ship canal across the state, or creating an agency for governmental purposes, but incorporating a 'useful' company or association with corporate powers, contrary to the express provisions of section 25, article 3.

4. The provision of chapter 15560 requiring the board of trustees of the Volusia County Fair to acquire, purchase, and take over in the name of Volusia county property owned by the Volusia County Fair Association, Inc., and other provisions, do not make the board of trustees created by chapter 15560 and agency for governmental purposes. Appeal from Circuit Court, Volusia County; Daniel A. Simmons, judge.

COUNSEL

W. J. Gardiner, of Daytona Beach, for Ben D. Thursby and others.

Stewart & Stewart, of De Land, for Isaac A. Stewart.

Hull, Landis & Whitehair, of De Land, and W. J. Gardiner, of Daytona Beach, for appellees Board of Trustees of Volusia County Fair.

OPINION

DAVIS C.

Isaac A. Stewart, whom we will refer to as the complainant, the owner of property and a taxpayer in Volusia county, Fla filed his bill of complaint in the circuit court of Volusia county against the members of the board of county commissioners of said county of Volusia, individually and as constituting the said board of county commissioners, Samuel D. Jordan, clerk, etc., Volusia County Fair Association, Inc., a corporation, board of trustees of Volusia County Fair, a corporation, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt, and J. G. Dreka, individually and as constituting the members of 'board of trustees of Volusia County Fair,' a corporation, and therein alleged substantially that the said county commissioners, without authority of law, donated and paid out, as a gratuity, the sum of $400 of the public funds of Volusia county to Volusia County Fair Association, a corporation, to help in securing the operation of a county fair, a warrant for said sum having been issued by the chairman and clerk of the said board; that in the budget prepared by said board, an appropriation of $6,000 was provided for to be paid out of the agricultural fund to the said Volusia County Fair Association, and that it was out of said appropriation that said sum of $400 was paid; that at the regular session of the Legislature of Florida, in 1931, a bill was passed entitled, 'An Act requiring the Board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00) which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A. D. 1930, and to end on the 30th day of September, A. D. 1931;' the same being known and referred to herein as Senate Bill No. 910; that the same Legislature also passed a bill entitled, 'An Act creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees ot acquire, Purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, maintain and carry on annually a fair or...