Town of Belleair v. Olds
| Citation | 127 F.2d 838 |
| Decision Date | 23 April 1942 |
| Docket Number | No. 10157.,10157. |
| Parties | TOWN OF BELLEAIR v. OLDS. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
O. K. Reaves and E. C. Johnson, both of Tampa, Fla., and D. G. Haley, of Clear-water and Sarasota, Fla., for appellant.
Giles J. Patterson, of Jacksonville, Fla., for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
When this cause was here before on the appeal of Olds,1 it was from a summary judgment against him on the defense, and the finding, that the decree in Olds v. Alvord,2 was an adjudication that the bonds he held were invalid and that their proceeds "were used for the benefit of private corporations and not for the public purposes of the Town of Belleair." Holding that "that question of fact having been so litigated and determined cannot be relitigated in this cause"; that insofar as the suit was on the bonds, their invalidity for lack of power to issue them was settled; that the issue of use of their proceeds for a non-public purpose, on which the summary judgment went against him, had not been adjudged so as to create an estoppel by judgment against Olds; and "if on the other counts there be any relief available under Florida law growing out of the retention or use of Olds' money for municipal purposes, it is still open to enquiry," we reversed the judgment and remanded the cause for further proceedings in the conduct of that inquiry.
Retried upon the same pleadings, the judgment this time was for the plaintiff, and four others made plaintiffs by amendment,3 not for $100,000 the face amount of the bonds held by them, but for the sum of $96,000, the amount received in cash and expended by the town in the construction of the seawall. The town, here pointing out that plaintiffs sue on account of moneys paid for bonds three times held void,4 insists that plaintiffs have wholly failed to show that the proceeds thereof were expended by the town for lawful public purposes so as to make it liable, and that the judgment in their favor may not stand.
We agree with appellant. Plaintiffs were confronted with the positive and unequivocal holding of the Supreme Court of Florida, in the Town of Belleair case, Note 4, supra, that if "the primary object of the seawall bond issue or its appropriation, is to benefit the property of a corporation or chartered company", then the bonds are void insofar as they are charges against the municipality because in positive violation of Section 7 of Article 9 of the Constitution, and that it would be a flagrant violation of Section 7 of Article 9, to impose a tax on the Town of Belleair, to pay them, and its equally positive holding in Olds v. Alvord, that having been issued in violation of the restrictions of the charter prohibiting their issue except upon a vote, the bonds were "void ab initio". They were under a heavy burden to show that in fact and in law, the proceeds of the bonds, issued not merely irregularly but completely ultra vires, were so laid out by the town in improvements beneficial to it, as to make it liable to plaintiffs for the value thereof to the town.
This burden, heavy in fact and in law, plaintiffs have not sustained. On the contrary, the proof supports but one conclusion, that the moneys were obtained and spent pursuant to the very plan and with the very result reprobated by the Supreme Court of Florida in the Town of Belleair case, in these words: "In view of these facts, it would be difficult to conceive a more flagrant violation of section 7, of article 9 than it would now be to impose a tax on the town of Belleair to pay interest and retirements of these bonds."
This being so, all of the arguments presented and authorities cited by appellee in support of recovery are of no avail to plaintiff, for treating its case, as the plaintiffs say it is, as one on implied contract for money had and received, it is settled law that no such recovery can be had in regard to moneys obtained and spent by towns in violation of express prohibitions of constitution or statute, and this especially so when the prohibition violated is one against borrowing money without a vote of the people.5
If however, plaintiff's suit could be construed not as on implied contract for monies lent but for the value to the town, of improvements constructed with the money and retained and used by it, plaintiffs would stand no better for they have not shown a beneficial use to the town on which a recovery could be based, but quite the contrary.6 Appellee's insistence that in the later case of Olds v. Alvord, the Supreme Court of Florida took the sting out of its findings in State v. Town of Belleair, by holding that validation had foreclosed all questions of invalid use, and that we, by reversing the former judgment against him, had affirmed his right to recover, will not at all do.
The Supreme Court of Florida did, in the Olds case, hold that the validation of those bonds of the town which were not void ab...
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Brownell v. City of St. Petersburg, Fla.
...or extravagance. Moore v. Spanish River Land Co., 118 Fla. 549, 159 So. 673; Town of Boca Raton v. Moore, supra; Cf. Town of Belleair v. Olds, 5 Cir., 127 F.2d 838; Hillsborough County v. Highway Engineering & C. Co., Fla. 199 So. 499. Further, it is settled in Florida and generally elsewhe......
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State v. Spring City
...however, most courts will not permit any such recovery. Litchfield v. Ballou, 114 U.S. 190, 5 S.Ct. 820, 29 L.Ed. 132; Town of Belleair v. Olds, 5 Cir., 127 F.2d 838; Fairbanks-Morse Co. v. City of Geary, 59 Okl. 22, 157 P. The plaintiff also contends that the trial court erred in denying r......
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