Treat v. State Ex Rel. Dann

Decision Date26 March 1935
Citation118 Fla. 899,160 So. 498
PartiesTREAT et al. v. STATE ex rel. DANN.
CourtFlorida Supreme Court
En Banc.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Mandamus proceedings by the State, on the relation of H. Carl Dann against James A. Treat, as mayor-commissioner, and others. To review a judgment granting a peremptory writ of mandamus defendants bring error.

Affirmed and remanded with directions.

COUNSEL

W. E. Winderweedle, of Winter Park, and Jones &amp White, of Clearwater, for plaintiffs in error.

George B. Carter, of Orlando, for defendant in error.

OPINION

DAVIS Justice.

The city of Winter Park, a municipality incorporated under chapter 11325, Sp. Acts 1925, issued certain bonds upon which relator below brought this proceeding in mandamus looking toward coercing their payment by a special tax levy, as provided for by the statutes under which such bonds had been issued and sold. See chapter 9298, Acts 1923, and chapter 11855, Acts 1927, Laws of Florida. The circuit court awarded relator a peremptory writ of mandamus and the respondents, as municipal officers of the city of Winter Park, have prosecuted this writ of error to that judgment.

That it was the city's duty to levy a special tax to pay relator's bonds past due and maturing on or before July 1, 1934, and to pay the current and maturing interest on all the described bonds of the respondent city owned or held by relator is not to be denied in view of the terms of the statutes under which the bonds were issued and sold, as construed in a number of prior decisions by this court.

The city of Winter Park's default in the performance of its legal duty in the premises was complete when its city officials failed to seasonably anticipate and adequately provide for the raising of the funds required by it to enable it to make its payments of maturing principal and interest, the necessity of providing for which in due course of municipal administration the city officials were charged with full knowledge of, at, and prior to the time the duty to first take official action arose.

A disregard of the municipality's duty to seasonably provide for payment, and the further disregard of its duty to pay relator's bonds, is the breach of legal duty upon which the writ of mandamus involved in this case was predicated. And upon such breach of legal duty it must be supported.

A definite breach of legal duty to pay, or to adequately provide for payment, on the part of a municipality as the obligor on municipal bonds sued on, gives rise to a legal right on the part of an injured creditor to institute a proceeding in mandamus for the purpose of having all necessary, due, and lawful action taken by the muncipality that the circumstances may demand in order to completely cure the breach of legal duty on the part of the city and its officials, which breach of duty may be a failure to seasonably provide for payment as well as a failure to pay.

In such a mandamus proceeding relator is entitled to ask for and to be awarded complete relief to the extent of coercing the respondent city officials to take and carry out whatever successive legal steps may be found to be essential to be carried out in order to provide a fund for payment of relator's bonds and coupons as well as to pay the same in accordance with the terms of relator's demand for a peremptory writ of mandamus sufficient in form and substance to accomplish the object of payment. Thus the effect of the relator's writ is to set in motion and to keep functioning the administrative course of procedure set forth in terms in the statutes and contracted to be faithfully and seasonably followed by the muncipality as a means of discharging its bonded debts. Baskin v. State ex rel. Wall, 110 Fla. 110, 149 So. 333; City of Clearwater v. State ex rel. United Mutual Life Ins. Co., 108 Fla. 623, 147 So. 459; Commissioners of Columbia County v. King, 13 Fla. 451; State ex rel. DuPont Ball Inc. v. Livingston, 104 Fla. 33, 139 So. 360; Humphreys v. State ex rel. Palm Beach Co., 108 Fla. 92, 145 So. 858; State ex rel. Keefe v. Cotton, 106 Fla. 733, 143 So. 644; Little River Bank & Trust Co. v. Johnson, 105 Fla. 212, 141 So. 141; McNally v. State ex rel. Bond Realization Corp., 112 Fla. 434, 150 So. 751; McNally v. State ex rel. Bond Realization Corp. (second appeal) (Fla.) 157 So. 430; State ex rel. Taliaferro v. Baskin, 113 Fla. 115, 151 So. 421; State ex rel. Gillespie v. Carlton, 103 Fla. 810, 138 So. 612; State ex rel. Montgomery v. City of Ft. Pierce, 106 Fla. 845, 143 So. 733; State ex rel. Carter v. City of St. Petersburg, 112 Fla. 395, 150 So. 584, 151 So. 481; State ex rel. New York Life Ins. Co. v. Curry, 104 Fla. 242, 139 So. 891; State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 150 So. 508, 90 A. L. R. 704; State ex rel. Dos Anigos, Inc. v. Lehman, 100 Fla. 1313, 131 So. 533; State ex rel. National Discount Corp. v. Livingston, 103 Fla. 841, 139 So. 364; State ex rel. Sherrill v. Milam, 113 Fla. 491, 153 So. 100, 125, 136; Pritchard v. State ex rel. Barrs, 111 Fla. 122, 149 So. 58; State ex rel. Supreme Forest Woodmen Circle v. Snow, 113 Fla. 241, 151 So. 393; State ex rel. Gillespie v. Vickers 110 Fla. 157, 148 So. 526; State ex rel. Gillespie v. Walsma, 113 Fla. 726. 152 So. 196.

As will be observed from our decisions, the holder of a muncipal bond, as to which a contract has been made in the bonds by the obligor, pursuant to statute, for the seasonable raising of revenue with which to discharge the bond debt and periodic interest payments, when and as due, is entitled to seek and have at least three forms of relief by mandamus (1) A mandate to require the obligor municipality to follow the statutory provisions constituting the financial plan under which the bonds were issued, by doing whatever is necessary to anticipate and provide for the orderly payment at maturity of the whole series of bonds and interest coupons of which relator's bonds and interest coupons are a part; (2) a mandate to require the onligor municipality to appropriate or pay out any applicable funds already on hand in satisfaction of bonds or interest coupons already due and payable out of such funds but remaining unpaid; and (3) a mandate to require the obligor municipality to specifically raise a sufficient special tax to be earmarked and applied to relator's bonds as interest coupons alone, when and after it is made to appear that the obligor municipality has breached its duty to provide, as...

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9 cases
  • State Ex Rel. Fieldhouse v. Sewell
    • United States
    • Florida Supreme Court
    • December 11, 1936
    ... ... This contention is not well ... taken. See State ex rel. v. Snow, 113 Fla. 241, 151 ... So. 393, and cases there cited. Also see Treat v ... State, 118 Fla. 899, 160 So. 498 ... On ... authority of the opinions and judgments above cited, the ... grounds numbered 1 and ... ...
  • Bal Harbour Village v. State ex rel. Giblin
    • United States
    • Florida District Court of Appeals
    • September 5, 1974
    ...show approval. The trial judge correctly determined that the return was insufficient to raise issues of fact. See Treat v. State ex rel. Dann, 118 Fla. 899, 160 So. 498 (1935). A more substantial question is raised by appellants' third point on appeal, wherein error is urged as to the trial......
  • Sholtz v. State Ex Rel. Ben Hur Life Ass'n
    • United States
    • Florida Supreme Court
    • December 20, 1935
    ... ... mandamus proceedings to which the relator, Davis, was not a ... In the ... case of Treat v. State ex rel. Dan, 118 Fla. 899, ... 160 So. 498, 500, we said: ... 'As ... will be observed from our decisions, the holder of a ... ...
  • City of Kissimmee v. State Ex Rel. Ben Hur Life Ass'n
    • United States
    • Florida Supreme Court
    • February 6, 1936
    ... ... the authority of the City of Kissimmee v. State ex rel ... Ben Hur Life Ass'n (Fla.) 163 So. 473; Treat v ... State ex rel. Dann, 118 Fla. 899, 160 So. 498; State ... ex rel. Harris v. City of Fort Pierce, 111 Fla. 174, 149 ... So. 338, 150 So. 283; ... ...
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