139 Fla. 730 | Fla. | 1939
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *732 Frank Adams, because of sterling character and keen business ability, had enjoyed almost phenomenal success as a farmer, merchant and banker. In his early life he resided in Jasper, and subsequently removed to Jacksonville, where he became the president of one of Florida's largest and strongest financial institutions. In this, as in his other business ventures, he was energetic, able, successful. As a result of his acumen, he amassed a large fortune. Not content with progress which enhanced his personal wealth, he gave of his talents to the State by serving in public office, was on two occasions president of the State Senate.
About twenty years ago, he fell victim to a disease known as paralysis agitans, and because of its ravages retired from active business, save that in a supervisory capacity he maintained *733 a connection with one of his enterprises in Jacksonville. For about twenty years, too, his blood pressure has been far above normal. Affluent, he maintains a staff of household servants sufficient to insure every comfort possible in his present physical condition, and, since 1921, has been continuously attended by his wife, by training a nurse. After many years of comparative business inactivity his interests are still valued at several hundred thousand dollars.
Nat Adams, a bachelor and brother of Frank, was also successful in the business world, and exhibited many of the fine traits of character that were peculiar to Frank Adams. He, too, was rewarded for his industry and acumen by the accumulation of property, said to be worth seven hundred thousand dollars.
Death came to Nat Adams, February 2, 1937. He left no will disposing of his estate, and was survived by his brother, a sister, Mrs. Minnie A. Strickland, and the following children of a deceased sister; W.A. Saunders, Doctor Albert F. Saunders and Julie Saunders Dickerson. Immediately after Nat Adams died, a search was made for his will, but none could be found, and subsequently an administrator was appointed for his estate.
February 6, 1937, Frank Adams and Rubye Adams, his wife, Minnie A. Strickland and A.J. Strickland, her husband, Julie A. Dickerson and R.G. Dickerson, her husband, W.A. Saunders and Albert F. Saunders executed an agreement reciting the belief of the parties that, although Nat Adams died intestate, it was his intention to dispose of his property as the parties therein provided, by to-wit: (1) establishing a trust fund for a colored servant, (2) setting up another trust fund for the upkeep of the family cemetery, (3) making an expenditure for the erection of a wall around said cemetery, and (4) distributing the net proceeds one-half *734 to W.A. Saunders, one-third to Julie A. Dickerson (one hundred thousand dollars of which was to be used as a trust fund for her benefit) and the remaining one-sixth to Albert F. Saunders.
On May 15, 1937, the same parties executed a confirmatory agreement, ratifying the one of February 6, and setting out that the things which were to be done under the latter had been accomplished.
This is the background of the litigation which is brought here for review.
In June, 1937, a bill of complaint was filed by F. Adams, by his next friend, L.S. Adams, charging that the agreement of February 6 was the result of a conspiracy on the part of W.A. Saunders, Albert F. Saunders, R.G. Dickerson and others to cause Frank Adams to convey his interest in his brother's estate at a time when he was mentally incapable of comprehending the transaction and when the will of the conspirators was substituted for that of Frank Adams. By the pleading it was sought to invalidate the instrument providing for the distribution of the estate.
The various defendants answered, and Frank Adams filed his petition in the cause, styling his "next friend," L.S. Adams, an intermeddler; stating that the bill was filed without his knowledge; charging that the proceeding was "acquiesced in" by all of his children; denying the allegations of fraud, undue influence and his own mental incapacity; and praying for dismissal of the bill.
L.S. Adams, next friend, answered the petition and re-asserted the prayers of the bill.
The chancellor, after taking testimony for about thirty days and hearing argument for two days, dismissed the bill by a very comprehensive decree, which has proven helpful *735 to this Court in considering the record of more than 4,000 pages.
It seems unnecessary to search beyond the decisions of the Supreme Court of Florida to announce the rule by which the evidence shall be weighed in determining whether Frank Adams was mentally incompetent at the time he executed the instruments of February 6 and May 15, and if he was unduly influenced to give away his share of his brother's estate. We refer to the opinions in. Rich v. Hallman,
In the case of Rich v. Hallman, supra, the complainant brought suit to set aside a gift made to her nurse, the only consideration for which was that the attendant would remain with the donor as long as the latter lived. It was charged that the transfer grew out of deceit and trickery, and that assignor was ignorant of its nature or legal effect. Placing emphasis on the influence exerted by a young person of alert mind upon one of advanced age, a confidential relationship existing between them the Court said the burden was on donee "to show conclusively that the gift to her * * *" was free of undue influence.
In the latter case (Travis v. Travis, supra), the contest was between heirs of a grantor to invalidate a deed made by an imbecile. The Court announced that:
"* * * The only question presented and argued is whether in view of the evidence, the decree should have been for defendant; the contention being that the evidence was sufficient to establish the fact of the mental incompetency of the grantor to make a valid deed at the time of the execution of the conveyance." 87 South Rep., text 762.
The rule followed in answer to that question was:
"The presumption is that the grantor was sane, and the *736
burden of proof upon the issue of her alleged mental incapacity to make a valid conveyance was upon complainants." 87 South. Rep., text 765. See also Hassey v. Williams,
Applying these rules, it would seem that the bearer of the burden of proof with respect to undue influence would be Frank Adams, but a rather anomalous situation is produced by his repudiation of the act of his next friend in bringing the suit and the issues made by the petition of complainant, himself, and the answer of his representative. Even invoking the rule in its strictest sense and placing upon complainant this burden despite his petition, we cannot conclude that there is not a preponderance of evidence to support the finding of the chancellor that there was lack of this element in the transaction.
In Peacock v. Du Bois,
"In Howard v. Farr,
" 'To constitute' undue influence, 'the mind * * * must be so controlled or affected by persuasion or pressure, artful of fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but * * * subject to the will of purposes of another.'
"In Myatt v. Myatt,
The first part of this quotation appears in the final decree.
From the record, it seems that the person nearest grantor, hence more likely to have influence over him, was his wife, nurse and companion, but she could hardly be charged with artful or insidious influence when she joined him in the deed disposing of an interest, part of which she, upon his death would receive. Another grantor, his sister, likewise was conveying her undivided third interest without monetray consideration and in such circumstances that artifice, fraud or deceit could not be attributed to her. These persons, particularly the first, seemed to have enjoyed the confidence of Frank Adams more than those who were actually benefited.
Our study leads us to the conclusion that by a preponderance of the evidence there was no taint of undue influence, and that the transfer was motivated by a desire on the part of Frank Adams and Minnie A. Strickland to do what they thought Nat Adams would have done, had time been given him to make a will. To ascribe to them any other motive does not seem logical. Each suffered a loss of thousands of dollars. The act of Adams was the same, of course, as that of his sister. It would be unnatural to attribute to either the motives of spite or hatred, and we feel no justification for deciding that the nieces and nephews brought about the transfer by undue influence.
The last problem is the one relating to the mental competency of the complainant. According to the announcement of the law on this subject in Travis v. Travis, supra, it must be shown that the mind was in such condition that the grantor could not comprehend the nature of the transaction. *738
Numerous witnesses, of varied business and professional experience, testified about the mental state of the complainant. A dealer in poultry, lawyers, a merchant, bankers, a salesman, business associates, a masseuse, a circuit judge, personal servants and a gardener related their observations of his actions during periods ranging from several years to comparatively shorter times.
Many physicians gave their opinions of his mental health and the probability or improbability of his comprehension of the transaction here under question. It is noteworthy that much of the testimony supporting allegations of his incapacity was based on hypothetical questions, while the doctors who had attended him very generally agreed that he was mentally fit to understand his action. See Mason v. State Bank of Orlando,
That complainant was subject to delusions at times, probably traceable to the effects of the drug hyoscine, was established, but the evidence falls far short of preponderating in support of the theory that at the time of the original and confirmatory agreements he did not "comprehend the effect and nature of the transaction."
Throughout a disheartening physical ailment, he seems to have maintained an interest in affairs of the day, business, the stock market and other topics which engage the attention of well informed men, and at this time, after an era of financial instability that has taxed the most sagacious, and after being physically helpless for nearly twenty years, is possessed of the fortune which he had the ability to accumulate and the wisdom to preserve.
A further discussion of the evidence hardly seems necessary. The application of the principles discussed above in the light of exhaustive briefs and comprehensive argument of counsel, leads us to the conclusion that the chancellor's *739 decision was proper, so the final decree dismissing the bill is affirmed.
TERRELL, C. J., and WHITFIELD and BROWN, J. J., concur.
BUFORD, J., concurs specially.
CHAPMAN, J., disqualified.
Concurrence Opinion
I concur in what is said in the opinion prepared by Mr. Justice THOMAS concerning the phase of this case which involves the question of whether or not Frank Adams was the victim of undue influence and was caused by such undue influence to execute an instrument disposing of property of great value by way of gift to certain nephews and nieces.
The record fails to show the exercise of any influence by anyone who benefited from the transaction. Such influence as may have been exerted was exerted by those whose financial status was in no way improved by the action of Mr. Adams; not is there any reason appearing in the record why those who had the opportunity to influence Mr. Adams should have had any desire to unduly influence him in this regard.
As the second question presented, viz.: Whether or not Mr. Adams possessed mental capacity to determine and act for himself so that his act in this regard would be his valid and binding deed, I can only agree with the conclusion reached in the majority opinion because of that well established rule that, "Where the findings of the chancellor are supported by the evidence, or where the evidence is conflicting and there is substantial evidence to support the chancellor's findings such findings will not be set aside unless the appellant makes it clearly to appear that substantial error was committed by the chancellor in his conclusions, or that the evidence clearly shows them to be erroneous." *740 See cases cited in paragraph 169, Appeal and Error, Vol. 1, Encyclopedic Digest of Florida Reports.
After consideration of the evidence submitted in this case it is my opinion that had the chancellor reached the conclusion that the deed involved was void because of the mental incapacity of Frank Adams, this Court would have been bound by that conclusion and would have been required to affirm such findings in conformity with the rule above stated.
In other words, the evidence is so conflicting in regard to Mr. Adams' mental capacity that the appellate court is bound to affirm the findings of the chancellor, regardless of the conclusions to which those findings lead.
Concurrence Opinion
This opinion deals with the jurisdictional question raised by the motion filed by the appellees on January 10, 1939, to strike the order of this Court rendered December 6, 1938, recalling the mandate and granting the extraordinary petition for rehearing on the merits, which had been filed on October 12, 1928; also the motions recently filed by appellees, on June 1st and 6th, respectively, asking the Court to desist from reconsideration of the cause; all of said motions of appellees being based upon the theory that this Court had lost jurisdiction of the case when the order of December 6, 1938, was entered, by reason of the fact that the Court had theretofore, on October 11, 1938, denied the petition for rehearing, which had been filed during the preceding (January) term, and the mandate had gone down on October 13, 1938, the contention being that this order of October 11, 1938, irrevocably terminated the jurisdiction of this Court.
The writer was very much impressed by the motion filed by appellees on January 10, 1939, and the arguments of able counsel in support of same, and gave the matter considerable study.
The original judgment of affirmance in this case was rendered on March 29, 1938, during the January term of that year. A petition for rehearing was duly filed which remained undisposed of at the end of that term. The Court entered its usual order continuing and carrying over into the June term of 1938 all pending causes and business before the Court which remained undisposed of. So this case was *750 carried over into the June term of 1938. Early in that term, on June 18, 1938, the petition for rehearing submitted during the preceding term was denied, but four days later such order of denial was vacated by this Court, thus leaving the petition for rehearing still pending undisposed of. On October 11, 1938, during the same term, the petition for rehearing was again considered and an order entered denying it, and two days later the mandate to the lower court was sent down. On October 12, 1938, an extraordinary petition for rehearing was filed, and a few days later a petition for the recall of the mandate was filed. On December 6, 1938, an order was made recalling the mandate, and granting a rehearing of the case on the merits, upon the second petition for rehearing.
Under the case of State ex rel. Davis v. City of Avon Park,
The case of Chapman v. St. Stevens Protestant Episcopal Church.
I do not think there can be any doubt about the proposition that a case can be carried over from one term to the ensuing term by the pendency of a petition for rehearing which remains undisposed of. This has been the practice and holding of this Court for many years. The Avon Park case, supra, held that the general rule that the power of a court over its orders and judgments terminates when the term at which they were rendered expires, is modified in that State, as to cases in the circuit court, by the statute permitting the court to entertain and act upon a motion for new trial presented within the statutory period, and as to cases in the Supreme Court by its long established rule permitting the filing of petitions for rehearing within fifteen days after rendition of judgment.
In the case of State ex rel. Davis v. City of Avon Park,supra, a case of original jurisdiction, it was held that where a petition for rehearing was filed during the following term, but within the fifteen days from the date of the judgment which is allowed by the rule for the filing of such petitions, this carried the case over into the subsequent term, in spite *752 of the fact that the judgment to which the petition was addressed was rendered during the preceding term; and that although such petition for rehearing was subsequently denied during such following term, this Court could, during said term, vacate the order denying such petition and grant a rehearing.
The case of Foster v. Thornton,
In the case of State ex rel. Davis, Attorney General, v. City of Clearwater,
A general rule which has support in many jurisdictions is that after a mandate has issued and the term expired, an appellate court ordinarily has no power thereafter to recall its mandate and reconsider, alter or modify its decision, except for the purpose of correcting clerical errors or mere matters of from. But a number of States have held that an appellate court has power to recall its mandate and correct, change or modify its judgment during the term at *754 which it was rendered. See the Annotations to Chapman v. St. Stevens Protestant Episcopal Church, supra, in 84 A. L. R., pp. 579-601. Yet it appears that the rule in many, if not a majority, of the States is that an appellate court loses jurisdiction of a case after its mandate has been lodged in the trial court and cannot recall its mandate even during the term in which its judgment was rendered. So the holding in our Chapman case was apparently contrary to the weight of authority in other jurisdictions. However, it has been consistently followed in this State ever since its rendition.
I have read all of the Florida cases dealing with this general subject (see cases cited in note below) and I am not convinced that this Court was without jurisdiction to enter the order of December 6, 1938, and I am therefore of the opinion that the motions attacking said order are not well founded, and should be denied.
WHITFIELD and BUFORD, J. J., concur. *755
Concurrence Opinion
I took no part in the consideration of this case until the matter was presented on motion to vacate the order granting a rehearing.
My view was that the court had lost jurisdiction of the cause and that the motion to vacate was well founded. That motion lost by a divided opinion of the Court. Thus, it was necessary to study the merits of the cause. From knowledge *783 gained by my examination and from the argument last presented, I concur in the opinion by Mr. Justice BUFORD.
Dissenting Opinion
I think a rehearing should be granted because the opinion states:
"Applying these rules, it would seem that the bearer of the burden of proof with respect to undue influence would be Frank Adams, but a rather anomalous situation is produced by his repudiation of the act of his next friend in bringing the suit and the issues made by the petition of complainant, himself, and the answer of his representative. Even invoking the rule in its strictest sense and placing upon complainant this burden despite his petition, we cannot conclude that there is not a preponderance of evidence to support the finding of the chancellor that there was lack of this element in the transaction."
The burden of proof as to undue influence was not on the complainant and the authorities cited do not establish such rule.
The record shows also that the chancellor did not adjudicate the question of undue influence. On pages 4409, et seq., the following appears in the chancellor's decree:
"The Court has spent not only hours but days in the study of this record and authorities of law relating to the involved questions. The adjudication of the mental competency of *744 the defendant, Frank Adams, disposes of the case and makes unnecessary discussion or adjudication of the numerous other questions presented. After a most painstaking study of the record; after spending around a month personally hearing the testimony and observing witnesses; after hearing extensive arguments from able counsel; after reading the voluminous briefs also filed in the cause, the Court has come to the conclusion that the defendant Frank Adams was mentally competent at the time he executed the conveyance in question here, and that he thoroughly understood what he was doing and that he did it in pursuance of his own volition and decision. The record is replete with instance after instance of his transactions of important business matters and important business deals, his discussions of important business matters, his directions and instructions about various details of his business, and all these during the time when the complainant, himself, asserts he was tremendously weak mentally or during the period he was at his worst, and most of it during the time this suit was pending. There is an (old) adage, 'actions speak louder than words,' and while it is agreed that Mr. Adams is in a terribly Helpless physical condition, and that because of his long suffering, he has indulged in considerable peculiar conduct, some of it apparently without any reasonable basis, and there is no doubt in the mind of the court that his mentality is not as strong as it was in his vigorous years, particularly so in view of the fact that he has been afflicted grievously from a physical standpoint for around twenty years, still considering the testimony within the purview of the rule laid down by our Supreme Court and giving effect to the many and numerous instances of his conduct which evidence a sound mind, and in view of the further fact that the complainant practically admitted his recognition of his father's *745 mental competency by his own dealings with him, the court has come to the firm conclusion that the complainant has not supported the allegations of his bill by preponderance of the proof."
The burden of proof was not on complainant to establish undue influence in a case of this sort by a preponderance of the evidence and, therefore, the record shows that if the chancellor may be presumed to have adjudicated the question of undue influence he did so applying an erroneous rule as to the burden of proof.
[NOTE: PUBLISHING ERROR OF REFERENCE AREA.] *746
[NOTE: PUBLISHING ERROR OF REFERENCE AREA.] *747
Dissenting Opinion
There was no effective final judgment of this Court until the mandate was issued October 13, 1938. The judgment then becoming effective was under the control and jurisdiction of this Court until the end of the then current term and the Court retained the power to vacate or modify it during the remainder of the term.
When the Court is acting or sitting as a body, four or more Justices participating constitute a quorum and affirmative action by a majority of such participating quorum constitutes valid action by the Court.
Addendum
After the mandate had been recalled and a rehearing granted in this cause, by order of December 6, 1938, counsel for appellees on January 10, 1939, filed a motion, "to set aside and strike from its records the pretended order entered in said cause on December 6, 1938, whereby (1) the Clerk of the Circuit Court of Pinellas County was directed to return to the clerk of this Court the mandate theretofore issued in said cause; (2) the extraordinary petition of appellants for rehearing was attempted to be granted; and (3) the cause was directed to be submitted *748 in due course," — the grounds of the motion being stated.
On March 20, 1939, the Court made the following order in this cause:
"This cause having been submitted to the Court upon motion of counsel for appellees to set aside and strike from its record the order entered therein on December 6, 1938, which motion has been argued by counsel for the respective parties and duly considered by the Court, it is thereupon ordered by the Court that the above styled cause be set down for oral argument on the merits at 10:00 o'clock A. M., Monday, March 27, instant."
On June 1, 1939, counsel for appellees filed a motion "to cease reconsidering the said cause of its merits and desist from further reconsideration thereof, to set aside and strike from its records the order of December 6, 1938, made by three judges only of this Honorable Court whereby a rehearing was attempted to he granted, and to return to the lower court the mandate of this Honorable Court heretofore issued."
One of the grounds of the motion is that "If this Honorable Court should reach the conclusion that the decree appealed from should be reversed, the Court would be without power to enter a decree of reversal since to do so would take the property of appellees — to-wit, the decree appealed from and the rights of the appellees thereunder — without due process of law, contrary to and in violation of Section 12 of the Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States, * * *."
The Court having duly considered said motions filed in this cause on January 10, 1939, and June 1, 1939, it is now ordered by the Court that each of such motions be and is hereby denied because the Court is evenly divided and the *749 motions could only be granted by the affirmative action of the majority of the Court participating in the disposition of such motions.
WHITFIELD, BROWN and BUFORD, J. J., concur.
TERRELL, CHAPMAN and THOMAS, J. J., dissent.
Addendum
We give a chronology of the steps in the appeal leading up to the motion now under consideration, as follows:
The opinion of the Court was filed March 29, 1938, affirming the decree of the lower court; April 11, 1938, petition for a rehearing was filed; June 13th, the January term ended and on the following day the June term commenced; June 18th, petition for rehearing was denied and four days later the order denying it was vacated; October 11th, petition for rehearing was again denied, and the following day an extraordinary application for rehearing was lodged; October 13th, the mandate issued; November 25th, a petition was presented for leave to file a motion to recall the mandate and make oral argument; over objection of opposing counsel, on December 6th, an order was entered recalling the mandate and granting a rehearing on the extraordinary petition.
During the proceedings above set out, until the first day of November, 1938, the personnel of the Supreme Court was unchanged, and on that date one member, who had voted on all of the petitions for rehearing, retired from the Court and was succeeded by a new appointee. Subsequent to this substitution, the last petition for rehearing was filed and granted by a vote of three to two, the new appointee not participating. Thus, it will be seen that, the motion carried by a vote of three to two, whereas, prior to that time, petitions for rehearing had been denied twice because a majority of the Court did not concur in voting affirmatively on the applications.
After the extraordinary petition for rehearing was granted and the mandate ordered recalled, a motion was made by opposing counsel to strike from the records the last order *756 of December 6th because of the circumstances apparent from a study of the above history of the Court's action.
Movants challenge the authority of the Court to grant the petition on vote of three in favor of it and two against, and question the jurisdiction of the Court because the petition for rehearing continued from one term to the next was denied and the mandate issued in the latter term.
Apparently the precise matter has not been decided by this Court before.
The Court loses its jurisdiction to consider an extraordinary petition for rehearing and recall of the mandate where nothing of record appears to carry the matter over until the following term. Allen v. Brevard County Loan Mortgage Co.,
Failure to send the mandate down, where the case was decided "four or five days" before the expiration of the term, was held in State ex rel. Davis v. City of Clearwater,
In State ex rel. Davis v. City of Avon Park,
There is no doubt that where a petition for rehearing is filed in one term, as was done in the above case, and the term ends without the application having been adjudicated, the Court may in the new term, dispose of the matter. The question is, whether, if the ruling is adverse to the petitioner and the mandate is sent down, the Court *757 has the power to entertain a subsequent petition in the same cause.
We believe that having denied the petition for rehearing and the mandate having been issued to the lower court the litigation ended, and there was no justification for entertaining the matter further in the new term.
We are of the opinion, too, that the personnel of the Court having remained the same at the time both petitions for rehearing were denied, the last extraordinary petition for rehearing should not have been granted on the vote of five remaining members of the Court.
At the time of the denial of neither the first nor second application for rehearing was there impending animmediate change of the personnel, although the retirement of one of the members of the Court was in prospect.
In the interest of speeding the work of the Court and finally deciding the disputes of litigants, it is important that a period may be placed somewhere in the process of appeals, and we think that it should have been fixed at the point where the mandate was issued in October. Although the Court should strive to determine by a clear majority the issues presented to it, yet it is none the less important that the litigation between the immediate parties be decided as speedily as practicable, even by a divided opinion setting no precedent for the future assistance of litigants and lawyers. The instant matter has been thoroughly presented and an honest effort has been made to meet both those ends.
There seems to be no sound reason to prolong the controversy. We conclude that the motion to dismiss and set aside the last order entered in said cause on December 6, 1938, granting extraordinary petition for rehearing and recalling the mandate should be vacated and that anything *758 said by the Court in State ex rel. Davis v. City of Avon Park,supra, to the contrary be overruled.
It is so ordered.
TERRELI., C. J., and THOMAS and CHAPMAN, J. J., concur.
BROWN and BUFORD, J. J., dissent.
Addendum
On our order filed herein on December 6th, 1938, mandate theretofore issued during the then continuing term was recalled and a rehearing granted. Reargument has been heard and additional briefs have been submitted and considered.
So much has been written in opinions heretofore filed March 28th and 29th and October 11th, 1938, that it appears no useful purpose can be served by repeating much which has already been said in the various opinions anent this cause.
The suit in the lower court was by way of bill in chancery seeking injunctive relief against the levy and assessment of taxes to pay interest and to create a fund to pay principal of bonds. The suit involves three issues of bonds issued by the Town of Belleair, Florida. The first was an issue of $300,000.00 known as Public improvement *759 Bonds dated July 1, 1924. The second was an issue of $119,700.00 known as Paving Improvement Bonds dated May 15, 1925. The third was an issue of $700,000.00 in several series dated August 1, 1925, and subsequent dates, respectively.
There is involved the validity of several issues of refunding bonds based on one of the above mentioned issues. Eighty thousand dollars of the $700,000.00 issue of Paving Improvement Bonds were refunded and validated by decree of the circuit court on August 17, 1927. One hundred thousand dollars of the $700,000 issue was refunded and the refund validated by the circuit court on April 20, 1928. Other bonds of that issue were refunded and validated October 4, 1929.
The validation decree as to these latter refunding bonds does not appear in the record but it is alleged that the refunding issue was made and the decree entered validating the same.
As to the $119,700 issue there is a paucity of information in the record but there is not a sufficient showing to warrant a decree holding those bonds to be invalid, especially in view of the provisions of Chapter 10338, Special Acts of 1925, which Act is:
"An Act To Make Valid Certain Municipal Improvement Bonds of the Town of Belleair Heights To Define the Authority of Said Town To Issue Certain Improvement Certificates and To Validate Certain Proceedings in Respect of the Issuance and Sale of Said Bonds.
"Whereas, the Town of Belleair Heights has a contract with C. R. Scott Company for the improvement and paving of certain streets and sidewalks in said City, and the said C. R. Scott Company has agreed to accept as part payment under the said contract Municipal Improvement Bonds of *760 said Town, issued under Section 1907 of the Revised General Statutes, based on certificates issued under Section 1906 of the Revised General Statutes,
"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF FLORIDA:
"Section 1. All such bonds heretofore issued or hereafter to be issued in regard to the improvements covered by the said contract are and shall be valid if based upon certificates purporting to be issued under the said Section 1906, notwithstanding any irregularity in the making of the said contract, in the issue of said certificates or in the laying of the assessments in regard to which said certificates are or may be issued; and the said Town is hereby authorized to exercise in addition to its other powers, the powers granted by the said Section 1906 and all certificates purporting to be issued under the said Section 1906 whether heretofore issued or hereafter to be issued are and shall be valid if issued pursuant to the provisions of the said Section 1906.
"Section 2. That the authorization, issuance and sale of said bonds to the said C. R. Scott Company in accordance with said contract are hereby ratified, validated and confirmed.
"Section 3. This Act shall become a law upon its passage and approval by the Governor, or upon its becoming a law without such approval.
"Approved May 13, 1925."
One of the major contentions is that this bond issue of $119,700.00 was and is void because an inspection of the record shows that it was when superimposed on the then outstanding $300,000.00 issue, sufficient to make bonds then outstanding in excess of the amount in which the municipality was at the time authorized to issue bonds. This *761 might present a troublesome question, had the $300,000.00 issue been a valid issue or one which could have been made valid and binding, but it will be seen that on the face of the record the $300,000.00 issue never became an enforceable or binding obligation. Certainly, one may not say the $300,000.00 bond issue was void, but that it was a binding obligation, which precluded the municipality from issuing other obligations before that one was reduced by payments or discharge, or the prohibitory statute removed by legislative Act.
The validity of the $300,000 bond issue is challenged on a ground not discussed in the first opinion herein filed March 28, 1938.
The Town of Belleair Heights was created by Chapter 9686, Special Acts of 1923. The validity, of the Act is not challenged. The Act incorporating Belleair Heights became effective from and after its passage and approval by the Governor and was approved June 6, 1923.
The power and authority of the Municipality to issue and sell bonds was prescribed and limited by Section 44 of the Act which, inter alia, provides:
"The Town of Belleair Heights shall have the right to issue and sell bonds for municipal government improvements; Provided such issue and sale of bonds shall be ratified by a majority of the qualified electors of said Town who are taxpayers and who paid taxes on their own property in the Town of Belleair Heights assessed and levied for the calendar year prior to that in which said election is held and actually voting at an election to be held for that purpose, not to exceed the amount of 15 per cent of the assessed value of taxable property of said town."
Section 47 of the Act provides:
"All of the property within the Town of Belleair Heights *762 taxable for State and county purposes shall be assessed and listed for the purpose of taxation on the town assessment roll, and railway and railroad companies, including street railway companies, shall be subject to assessment and taxation on all real estate and personal property owned by them within the limits of the corporation in the same manner and at the same ratio and valuation as other property, save and except roadbeds and rolling stock of said railroads, which shall be assessessed by the Comptroller as now provided by law, and it shall be the duty of the tax assessor of said town, between the first Monday in January and the first Monday in June each year to ascertain by diligent inquiry all taxable property, both personal and real estate, in the Town of Belleair Heights and the names of the persons owning the same, and on the first Monday in January of each year to make an assessment of all such taxable property. He shall visit and inspect all real estate, unless acquainted therewith, and the improvements thereon, and fix a valuation on the same and shall require owners of personal property to return and value the same under oath; and in case the owner of personal property neglects and fails to return the same the assessor of taxes shall assess the same, fix a valuation thereon, and any person or persons so neglecting to make return under oath shall not be permitted afterwards to reduce the valuation by such assessor on his personal property for that year; Provided that any error therein may be corrected by the board of commissioners of the Town of Belleair Heights at the time of the equalization by them of the tax assessment of said city. The assessor of taxes is hereby authorized to administer oaths to all persons returning their personal property."
There was no provision for the levy and assessment of *763 taxes for the year 1923. The bond election was held prior to July 1, 1924, and it, therefore, appears that at that time the Town by its charter Act was precluded from issuing bonds because under the express terms of the charter Act bonds could only be issued, "Provided such issue and sale of bonds shall be ratified by a majority of the qualified electors of said town who are tax-payers and who paid taxes on their own property in the town of Belleair Heights assessed and levied for the calendar year prior to that in which said election is held and actually voting at an election to be held for that purpose." The issuing authority being without power to issue bonds, a judicial validating decree could not confer validity. See cases hereinafter cited.
This is true because under the statute the power of the municipality to issue bonds did not accrue or exist prior to January, 1925, and by the terms of the statute the municipality was denied the power until such time as it became possible to hold an election under the terms of the statute. (See
It so happens that the proceeds of this $300,000 issue was used for building a sea wall and making other improvements which were chiefly beneficial to a private corporation.
The Town of Belleair was created succeeding the Town of Belleair Heights by Chapter 10335, Special Acts of 1925. Sub-section (d) of Section 3 of that Act provides:
"Shall have the power within and without its territorial limits, to construct, condemn, purchase, acquire, lease or to maintain, conduct and operate within and without its corporate limits, wharves, warehouses, ship-channels, break-waters, jetties, sea walls, water-works, parks, athletic fields, golf links, drives, lighting plants, gas plants, telephone systems, power plants, transportation systems, graveyards, pest-houses, hospitals and libraries, for the use of said Town and its inhabitants, and to make a contract of whatever nature in connection therewith, and shall enforce such purchase, if necessary, by eminent domain proceedings, and shall have the right and power to issue bonds for any of the aforesaid purposes and for refunding any indebtedness, upon the majority vote of all electors actually voting at any bond election, provided that no bond election shall be required for the purposes set forth in Section 24 of this Act, and provided further that no bond election shall be required for the purposes set forth in Section 24 of this Act, and provided further that no elector shall participate in any bond election who is not a freeholder in said Town, and who is not otherwise qualified as a voter therein. Provided also that the maximum amount to which said Town of Belleair may bond shall not exceed twenty-five per cent (25%) of its assessed valuation."
Section 24 of Chapter 10336, Special Acts of 1925, provides:
"The term 'local improvements' as referred to in Section *765 1 of this Act, shall be construed to mean the following improvements, namely:
"(a) Streets, highways, boulevards, avenues, squares, lanes, alleys and parks, or any part thereof, may be opened, reopened, widened, graded, regraded, paved, repaved, surfaced or resurfaced, and curbs and gutters may be constructed or reconstructed therein, together with the necessary storm sewers, drains and catch basins, necessary to and incident in paving of such highways, boulevards, avenues, squares, lanes, alleys and parks.
"(b) Sanitary sewers, storm sewers and other drains or sewers may be laid or relaid, and constructed or reconstructed in any streets, highway, boulevard, avenue, square, lane, alley or park.
"(c) Side-walks and white-ways may be constructed, reconstructed, widened, altered or changed along any highway, boulevard, avenue, squares, lanes, alleys and park thereof.
"(d) Trees and shrubbery may be purchased and planted in parkways between property lines and curb."
The $700,000 bond issue appears to have been promulgated under the provisions of Chapter 10337, Special Acts of 1925, the title of which is:
"An Act Providing a Supplemental, Additional and Alternative Method of Making Local Improvements for the Town of Belleair, a Municipal Corporation, Authorizing and Providing for Special Assessments for the Cost Thereof, and Authorizing the Issuance and Sale of Bonds for Such Municipality."
And Sections 1 to 8, inclusive, which are as follows:
"Section 1. Whenever the Town of Belleair, a municipal corporation existing under the laws of this State hereinafter referred to as the 'Municipality' shall have (either *766 heretofore or hereafter), by its board of commissioners or other governing authority, hereinafter referred to as the 'Governing Authority,' awarded contracts for local improvements, as specifically provided in Section 24 of this Act, and to be made wholly or in part at the cost of the property owners benefited thereby and the payment for which improvements it proposes to provide by levying and assessing and collecting special assessments for any and all of the improvements authorized under Section 24 of this Act, the Town of Belleair is hereby authorized to) estimate and determine the cost of the improvements to be raised by special assessments against the property benefited, and may by resolution issue improvement bonds pledging the full faith and credit of the municipality to an amount not exceeding 90 per cent of such estimate. Said bonds may be sold but shall not be delivered except as the work progresses. Said bonds may be issued in series or installments from time to time as the governing authority may determine. Such bonds shall be general obligations of the municipality and if special assessments be not imposed and collected in respect of the improvement in season to pay the principal and interest, the municipality by its governing authority and other officers shall levy and collect on all taxable property in the municipality a tax sufficient to pay such principal and interest as the same respectively become due and payable.
"Sec. 2. Upon the final completion of any contract for a public improvement, and after an assessment of benefits has been confirmed by the governing authority, as hereinafter provided, the governing authority of the municipality may by resolution issue Improvement Bonds pledging the full faith and credit of the Municipality to an amount not exceeding the unpaid assessments, as so confirmed; provided, *767 however, that if any bonds have been issued under the preceding section upon an estimate of the cost of the improvement, the bonds issued under this section shall not in the aggregate exceed the amount of the unpaid assessments, as so confirmed. All special assessments levied and imposed in respect of the improvements shall constitute a fund for the payment of the bonds authorized, by this and the preceding section, and in the event that there be any failure to collect and receive the said special assessments in season to pay the principal and interest of the said bonds, the municipality by its governing authority and other officers shall levy and collect on all of its taxable property in the municipality a tax sufficient to pay such principal and interest as the same respectively become due and payable. All bonds issued under this title and the preceding section shall be excluded from any limitation of indebtedness prescribed by the Charter of the municipality, by Special Act or by the General Laws.
"Sec. 3. All bonds issued under the two sections immediately preceding shall mature and become payable in not more than ten annual installments, which shall be substantially equal in amount and the last of which shall be payable in not more than ten and one-half years from the date.
"Sec. 4. All bonds issued under this Act shall be in the denomination of One Hundred Dollars or some multiple thereof, and shall bear interest not exceeding six per centum per annum, payable annually, or semi-annually, and both principal and interest shall be payable at such place or places as the governing authority may determine. The form of such bonds shall be fixed by resolution of the governing authority of the municipality, and the said bonds shall be signed by the mayor or chief executive officer of the *768 municipality and the town clerk thereof, under the seal of the municipality. The coupons shall be executed by the fac-simile signature of the Town Clerk. The delivery of any bond and coupon so executed at any time thereafter shall be valid, although before the date of delivery the person signing such bonds or coupons shall cease to hold office.
"Sec. 5. Bonds issued hereunder shall have all the qualities of negotiable paper under the law merchant, and shall not be invalid for any irregularity or defect in the proceedings for the issue and sale thereof, and shall be incontestable in the hands of bona fide purchasers or holders thereof for value.
"Sec. 6. Before any bonds of any municipality are issued hereunder, the governing authority shall investigate and determine the legality of the proceedings. The resolution authorizing the bonds may direct that they shall contain the following recital:
" 'It is certified that this bond is authorized by and is issued in conformity with the requirement of the Constitution and statutes of this State.' Such recital shall be all authorized declaration by the governing authority of the municipality and shall import that there is constitutional and statutory authority for incurring the debts and issuing the bonds; that all the proceedings thereof are regular; that all acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of the bond have existed, happened and been performed in due time, form and manner as required by law; that the amount of the bond, together with all other indebtedness, does not exceed any limit or limits prescribed by the Constitution and Statutes of this State. If any bond be issued containing such recital, it shall be conclusively presumed that said recital construed according to the import hereby declared is *769 true, and neither the municipality nor any taxpayer thereof shall be permitted to question the validity or legality of the obligation in any court, in any action or proceeding.
"Sec. 7. All bonds issued hereunder shall be sold for not less than ninety-five cents and accrued interest to date of delivery and in such a manner as the governing authority shall determine, or as may be provided in any section of the town charter relative to the sale of bonds; provided, however, that nothing contained herein, or any section of the town charter, or any other act, shall be construed to mean that any bonds herein provided for must be ratified or submitted to the vote of the electors of the said town provided, further, that all contracts heretofore made and entered into for the sale of bonds based on special assessments are hereby validated and confirmed and the municipality is hereby authorized to proceed in the carrying out of said contracts and said bonds may be issued under the provisions of this Act without respect to the provisions of any other Act or law or section of the town charter relative to the manner of sale and issuance of bonds of said municipality.
"Sec. 8. This Act shall, without reference to any other Act of the Legislature of Florida, he full authority for the issuance and sale of the bonds in this Act authorized, and shall be construed as an additional and alternative method for financing of the improvements herein referred to. No ordinance, resolution or proceeding in respect of the issuance of said bonds hereunder shall be necessary, except such as is required by this Act. No publication of any resolution, ordinance or proceeding relating to the issuance of the said bonds shall he required, except such as is required by this Act."
And Section 24 is:
"The term 'local improvements' as referred to in Section *770 1 of this Act, shall be construed to mean the following improvement, namely:
"(a) Streets, highways, boulevards avenues, squares, lanes, alleys and parks or any part thereof, may be opened, re-opened, widened, graded, re-graded, paved, re-paved, surfaced or re-surfaced, and curbs and gutters may be constructed or reconstructed therein, together with the necessary storm sewers, drains and catch basins necessary to and incident in paving of such highways, boulevards, avenues, squares, lanes, alleys and parks.
"(b) Sanitary sewers, storm sewers and other drains or sewers may be laid or re-laid and constructed or reconstructed in any streets, highways, boulevard, avenue, square, lane, alley or park.
"(c) Sidewalks and white-ways may be constructed, reconstructed, widened, altered or changed along any highway, boulevard, avenue, squares, lanes, alleys and park thereof, and the planting of trees and other ornamental shrubbery in parkways, between lot line and street curbs."
This Act is the most important legislation involved in this latter bond issue and yet we fail to find it given any prominence in any brief filed here, or in oral argument.
The resolution by the city commission contemplating and authorizing the issuance of the $700,000 bond issue was sufficient to show compliance with the provisions of the Act last quoted and the charter provision, supra.
The bonds of that issue recited:
"KNOW ALL MEN BY THESE PRESENTS: That the Town of Belleair, a municipal corporation in the County of Pinellas, State of Florida, for value received, acknowledges itself indebted and promises to pay to bearer, on the 1st day of August, A.D. 1931, ONE THOUSAND DOLLARS, with interest thereon from date hereof until paid, at the rate of *771 six (6) per cent per annum, payable semi-annually, on the 1st day of February and the 1st day of August each year, on presentation and surrender of the annexed coupons hereto attached as they severally become due. Both principal and interest payable in gold coin of the United States of America of current weight and fineness, at the Banking House of Harriman National Bank, of the City of New York, and the said Town of Belleair is hereby held and firmly bound and its full faith, credit and resources are hereby irrevocably pledged for the payment of the principal and interest hereof at maturity.
"This bond is one of a series of six (6) series of bonds aggregating $700,000.00 issued by the Town of Belleair for the purpose of securing funds with which to pay contracts for street and sidewalk paving and street improvements and is issued in conformity with and under the provisions of Senate Bill No. 655, Laws of Florida 1925, and pursuant to resolutions of said Town duly passed, approved and adopted as required by law, and it is certified that this bond is authorized by and issued in conformity with the requirements of the Constitution and statutes of this State.
"IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things required by the Constitution and laws of the State of Florida and by the Charter of said Town to exist, happen and be performed precedent to and in the issuance of this bond, do exist, have happened and been performed in regular and due form, time and manner as required by law, and that the amount of this bond, together with all other indebtedness of said Town, does not exceed any limitation imposed by either the Constitution or statutes of Florida, or by the Charter of said Town."
The decree of validation, inter alia, held and decreed:
"This cause coming on to be heard on 11th day of *772 July, A.D. 1925, before the court in the City of Clearwater, Florida, pursuant to a prior order of this court made herein upon the 19th day of June, A.D. 1925, and upon the filing of the petition of the Town of Belleair, which petition was duly sworn to by Ed A. Haley, Acting Mayor of Belleair and the answer of the State of Florida through E.P. Wilson, State Attorney for the Sixth judicial Circuit of the State Florida, and there being no person appearing pursuant to the notice published by the clerk of this court;
"And it appearing to the court and the court so finds that the clerk of this court did publish in the Clearwater Evening Sun, a newspaper published in the County of Pinellas, a notice addressed to the citizens and taxpayers of the said Town of Belleair, as required by law, which said notice was published once a week for three consecutive weeks, the first of said publications being on the 19th day of June A.D. 1925, and which said notice was in proper form and fully complied with the requirements of law;
"And it further appearing to the court and the court so finding that all things, conditions and requirements necessary and requisite to the issuance of said bonds have been, have happened and been performed as set forth in said petition, and that all the requirements of law in every respect have been fully met, fulfilled and complied with by the officers charged by law with the duties and requirements incident to the issuance of said bonds;
"And it further appearing to the court that the purpose for which said bonds were issued, to-wit: for providing funds with which to pay contracts for street and sidewalk paving and street improvements to the amount of $700,000.00 is a purpose authorized by law for the issuance of said bonds and that said bonds should be validated and confirmed: *773
"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the court that the issue of bonds to the amount of $700,000 for providing funds for the payment of contracts for street and sidewalk paving and street improvement in the Town of Belleair, to be issued in six series and to be dated and to mature as follows, to-wit:
"Series A for $100,000.00, to be dated August 1, 1925, and $10,000 of said bonds to mature on the first day of August in each of the years 1926 to 1935, inclusive.
"Series B, for $100,000.00 to be dated September 1, 1925, and $10,000 of said bonds to mature on the 1st day of September in each of the years 1926 to 1935, inclusive.
"Series C for $100,000.00 to be dated October 1, 1925, and $10,000 of said bonds to mature on the first day of October in each of the years 1926 to 1935, inclusive.
"Series D for $100,000.00 to be dated November 1, 1925, and $10,000 of said bonds to mature on the 1st day of November in each of the years 1926 to 1935, inclusive.
"Series E for $100,000.00 to be dated December 1, 1925, and $10,000 of said bonds to mature on the 1st day of December in each of the years 1926 to 1935, inclusive.
"Series F for $200,000.00 to be dated January 1, 1926, and $20,000.00 of said bonds to mature on the 1st day of January in each year of the years 1927 to 1936, inclusive.
"To draw interest at the rate of six percent (6%) per annum, payable semi-annually, to be in denominations of One Thousand Dollars ($1,000.00) each, both principal and interest payable in the City and State of New York and as otherwise set out in said petition and as authorized by a resolution of the Town Commissioners of the Town of Belleair, on the 18th day of June, A.D. 1925, be and they are hereby validated and confirmed and that henceforth said bonds shall never be questioned in any Court in this State, *774 and that upon the issuance of said bonds there shall be stamped or primed on each of said bonds the following endorsement:
"Validated and confirmed by decree of the Circuit Court of the Sixth Judicial Circuit of the State, of Florida in and for Pinellas County; dated the 11th day of July, A.D. 1925,
" '..............................
" 'Clerk of the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County.'
"And which said endorsement shall be signed by the Clerk of said court, and the official seal of said Clerk thereunto attached.
DONE AND ORDERED in the City of Clearwater, Florida, this 11th day of July, A.D. 1925.
"M.A. McMullen, Judge."
There was no appeal from this decree and it became a final adjudication of the validity of the bonds involved.
The conclusions which we have herein stated are in line with those stated, and are amply supported by, the authorities cited by Mr. Justice WHITFIELD, in the opinion prepared by him and filed in this cause on March 28, 1938, wherein he stated:
"The Constitution of Florida contains the following: 'No tax shall be levied for the benefit of any chartered company of the State, nor for paying interest on any bonds issued by such chartered companies, or by counties or by corporations, for the above mentioned purposes.' Sec. 7, Art. IX, Florida Constitution.
"The organic section forbids taxation for the benefit of anychartered company of the State or for paying interest *775 on any bonds issued by any chartered company of the State or by counties or by corporations for the benefit of any charteredcompany of this State.
"The evil sought to be avoided by the organic section is taxation for the benefit of any chartered company of this State as is illustrated in the issue of bonds by counties and cities to aid in the construction of railroads. See Columbia County v. King,
"Where county or municipal or district bonds are legally issued for public improvements of public facilities, the mere fact that corporations or individuals are benefited by such public improvements or facilities along with or in common with the public generally, does not violate Section 7 of Article IX of the Constitution. Hunter v. Owens,
"Decrees validating municipal bonds duly rendered under the statute are conclusive of the validity of the bonds validated unless there was no legal authority to issue the bonds, or unless the statute or the bonds or the record of the proceedings under which the bonds were issued, show that the bonds violate some command or prohibition of the Constitution relating to the bonds. Commands and prohibitions of the Constitution control over legislative or judicial validations of bonds. Validations cannot supply an entire absence of authority to issue municipal bonds, or cure a *776
patent violation of a command or prohibition of the Constitution. Weinberger v. Bd. Pub. Inst.,
At least the greatest part of the bonds have been validated by judicial decrees under the jurisdiction conferred by the statute, all of 'the taxpayers and citizens of the * * * municipality' being, by notice published under this statute, made parties defendant to the validating proceedings. No taxpayer asserted the invalidity of the bonds in the validation suits, and the decrees of validation are conclusive against the 'municipality * * * and against all taxpayers and citizens thereof.' Sec. 5109 (3299) C. G. L. No violation of a commandor prohibition of the Constitution in issuing the bonds is shown by the statute or by the bonds or by the record for issuing the bonds. Such a violation of organic law, if so shown, would be binding notice to purchasers of the bonds. See 44 C. J. 1243. The bonds state the statutory authority under which they were issued and recite a compliance therewith, together with a pledge of full faith and credit of the town for the payment of the bonds. Recitals and covenants contained in the bonds are binding on the taxpayers, and no violation of the Constitution in issuing the bonds appears by the bonds or by the issuing or validating proceedings. Sparks v. Ewing,
"If the bonds or the proceeds of bond sales were benigillegally used 'for the benefit of any chartered company' by *777
making improvements primarily for the benefit of property owned by chartered companies in building sea-walls and other improvements in front of or on such private property, as is in effect alleged, such illegal action must have been obvious to citizens and tax-payers of the town and any tax-payer could have invoked judicial decrees enjoining such asserted illegal use of the bonds or the funds; and not having done so, all have thereby waived their rights to challenge the validity of a tax to pay the bonds upon the stated grounds resting in pais, when, as here, no illegal use of the bonds or their proceeds for the benefit of any chartered company, as asserted, appears by the bonds or by the record of the proceedings for their issue, or by the law under which the bonds were issued. See Abell v. Town of Boynton,
"In Thompson v. Town of Frostproof,
"In the Weinberger case,
"In the Nuveen case, Article XII of the Constitution impliedly forbade the issue of Municipal bonds for the support and maintenance of public free schools, which rendered thebonds ineffectual, even in the hands of purchasers for full value, because they were issued by the municipality for public free school purposes in violation of the Constitution as shownby the record and by the bonds, and not by matters de hors the record arising after the bonds were issued and sold. The statute attempting to authorize the municipality to issue bonds for public free school purposes, on its face, violated Article XII of the Constitution. Munroe v. Reeves,
" 'Municipal bonds issued without competent legal authority or for a purpose that is forbidden by controlling law are invalid even in the hands of bona fide holders for value. And recitals of compliance with law contained in municipal bonds cannot confer authority not legally given to issue the bonds. 44 C. J. 1248; State ex rel. Nuveen. v. Greer,
" 'Where there is adequate legal authority for the issue and sale of municipal bonds, and the bonds are issued for an authorized municipal purpose, mere administrative or ministerial irregularities in issuing the bonds may not render the bonds invalid in the hands of a bona fide holder, particularly when the bonds contain a statement that the laws have been fully complied with in issuing the bonds. See Crawford v. State ex rel.,
" 'While the proceeds of bonds sold by the municipality must be applied to the purposes for which the bonds were issued and sold, the purchaser of such bonds is not required to look to the application of the proceeds, and hence it is no defense that the proceeds of the bonds were improperly *780
applied or used for an unauthorized purpose.' McQuillin: Municipal Corporations (2d Ed.), Vol. 6, Sec. 2516. Sec Hightower v. Raleigh,
"This suit is to enjoin taxation to pay municipal bonds, based upon matters not of record when the bonds were issued: i. e., the use of the bonds or the bond proceeds in violation of Sec. 7. Article IX of the Constitution. The bonds were issuedand sold years ago upon a record of proceedings showing the bonds were to be issued for authorized municipal purposes, and at least a large part of the bonds were validated by decree of the circuit court under the jurisdiction conferred by statute; and nothing in the record of the proceedings or in the bonds indicated that the bonds were to be used in violation of Section 7, Article IX of the Constitution, which organic section does not require bona fide purchasers of municipal bonds to see to the proper application of the bond proceeds. See Hightower v. Raleigh,
"The statute under which the decrees were rendered validating the bonds, provides by published notice for appropriate parties, including the taxpayers and citizens of the municipality, with adequate notice of hearing; and the statute also provides that 'the decree of the circuit court validating and confirming the issuance of the bonds (if not reversed on appeal) * * * shall be forever conclusive as to the validity of said bonds * * * against the * * * municipality * * * and against all taxpayers and citizens thereof; and the validity of said bonds * * * shall never be called in question in any court in this State.' Sec. 5109 (3299) C. G. L. See Little River Bk. Tr. Co. v. Johnson,
"In City of Bradenton v. State,
"Any taxpayer could have contested the validating proceedings covering bonds referred to in this case, if the bonds were to be used in violation of Section 7, Article IX, Constitution. See Juvenal v. Dixon,
"Section 7, Article IX of the Constitution of Florida does not forbid the issue or the payment of bonds of a municipality for authorized municipal purposes, or require bona fide purchasers of such bonds to see to the proper application of the bond proceeds; and when the taxpayers of the municipality acquiesce in the validation of such bonds and in the use of the bond proceeds, taxation to pay the bonds held bona fide should not be enjoined on the ground that the bond proceeds were used for the benefit of chartered companies or individuals, unless it appears by the statute authorizing the bonds, or by the bonds, or by the record proceedings for issuing or validating the bonds, that the bonds or the proceeds thereof were to be used for the benefit of chartered companies or otherwise in violation of such section 7, Article IX. *782
"No taxpayer resisted, as authorized by the statute, the validation of the bonds on the ground that Section 7, Article IX, would be violated by the issue of the bonds as was done in City of Bradenton v. State,
From the conclusions reached, it follows that insofar as the decree appealed from affects the proposed tax to be levied and assessed to produce funds with which to pay the principal and interest on the $300,000.00 bond issue, supra, it is affirmed; but, in all other respects, it is reversed and the cause is remanded with directions that a decree be forthwith entered not inconsistent with the views herein expressed.
So ordered.
WHITFIELD and BROWN, J. J., concur.
THOMAS, J., concurs specially.
TERRELL, C. J., and CHAPMAN, J., dissent.
Addendum
The order granting a rehearing is procedural only. Itmerely permits a re-argument of the cause and does not changeor affect the judgment of this Court affirming the decree appealed from. The judgment of affirmance stands as the judgment of this Court unless it is changed by a majority of the Justices of the Court sitting as a body in the cause.
I am willing to let the cause be re-argued as other causes have been. The judgment of affirmance will of course remain the judgment of this Court unless it is changed in the manner required by the Constitution.
This Court sitting as a body with five of the six Justices participating, has jurisdiction by a majority vote to grant a petition for a rehearing and to recall the mandate in a cause in which a decree of the circuit court has been affirmed by an evenly divided Court, where the petition for rehearing ispresented and granted during the term in which the mandate isissued and transmitted to the trial court. But a petition for rehearing granted does not in any way affect the judgment of the Supreme Court rendered in the cause. Such judgment cannot be changed in its legal effect except by a direct vote of the Justices as is expressly provided by the Constitution. See Corner Bridge Foundation Co. v. Sheeran,
The Constitution as amended in 1902 does not provide for a decision in any cause in the Supreme Court to be rendered by an even division of the six Justices of the Court but it does expressly provide that, "The majority of the Justices of the Supreme Court shall constitute a quorum for the transaction of all business," and that, "The *784 concurrence of a majority of the members of the Court sitting in any cause wherein the Court shall sit as one body, shall be necessary to a decision; and when any member of a division of the Court shall dissent from the majority of such division of any question, such question shall be submitted to the Court sitting in a body." Sec. 4, Art. V.
The word "sitting" of course means participating in a decision in a cause.
Under the latter organic provision quoted above, this Court has decided numerous cases, some of which involved questions of constitutional law, on a vote of three to two when there were six Justices. See for examples, Ex parte Cox,
In Carver v. State, a murder case,
So under the Constitution when there are six members of the Court and five are participating, a decision may be made *785 three to two; or when four participate, a decision may be made by a vote of three to one of the Justices sitting as a body in the cause.
In State ex rel. v. McClung,
Three to three affirmances under the procedure adopted in the McClung case, cited above, do not affect the exercise of jurisdiction as required by Section 4, Article V, of the Constitution when a justiciable matter is presented to the Court by petition or otherwise.
In Helton v. State,
In Chapman v. St. Stephens P. E. Church,
In Foster v. Thornton,
The above quotation is from the opinion in Foster v. Thornton,
So in the Foster v. Thornton case the judgment was reversed August 10, 1933, in the June term, 1933. On February 9, 1934, in the January term, 1934, the judgment was affirmed on petition for rehearing. The mandate was issued and transmitted to the trial court March 1, 1934, in the January term, 1934, and was recalled June 26, 1934, in the June Term, 1934. On December 6, 1934, in the June term, 1934, the judgment was again reversed.
There are at least two other cases now before the Court in which judgments were rendered and rehearings denied, and on second petitions for rehearings, the causes were carried over to this term on the petitions for rehearing which are now under consideration, no order vacating the final judgment having been made. The ground for granting the rehearings was a change in the personnel of this Court.
As the Court had jurisdiction in this term to reverse the judgment in Helton v. State, above cited, on a petition forrehearing granted and mandate recalled during the last term on the ground that there had been a change in the personnel of the Court, it must be that the Court has the *788 same jurisdiction at this term that it had at the last term. When a cause is carried over to another succeeding term or terms as in Foster v. Thornton and Taylor v. Finlayson, above cited, the Court has the same jurisdiction in each term that it had in the first term to make any order until the cause is finally disposed of in due course, and the term in which it is finally disposed of has expired. A mandate may be recalled during the term in which it is issued. And the mandate was recalled the term after it was issued in Foster v. Thornton,supra, 125 Fla., text page 701. This Court may grant or deny the recall of a mandate upon a proper and sufficient showing to warrant the order made.
In this case the decree was affirmed March 29, 1938, in the January term, 1938, on a three-to-three division of the six Justices. A petition for rehearing filed April 14, 1938, was carried over into the next term and denied June 18, 1938. The last order was vacated June 22, 1938. The petition for rehearing was denied by a three-to-three division of the Court October 11, 1938. Another petition for rehearing was filed October 12, 1938. The mandate was issued October 13, 1938. On November 25, 1938, during the same term in which the mandate was issued, petitions for rehearing and a recall of the mandate were filed. Objections were filed December 6, 1938. On December 6, 1938, an order granting a rehearing and recalling the mandate was made by a three-to-two vote of the Justices, one Justice being absent, not participating. The cause was carried over to this term on the petition for rehearing and recall of the mandate as was done in Helton v. State, above referred to.
In this case a party to the affirmed decree had a right to present a petition for rehearing as had been done in many other case, and the province of the Court was to act on the petition. There were six Justices present, the petition was *789 granted three to two, one Justice not participating, as had been done in other cases. The cause was duly carried over to this term, and the Court has all the jurisdiction and power it had at a preceding term.
A re-argument should be allowed as in other cases, no matter what the decision may be.
This opinion was prepared before the order of March 28, 1938, was made by the Court.
BUFORD, J., concurs.
BROWN, J., concurs in conclusion.
Addendum
The general rule is that the person alleging that a contract, deed or gift was procured through the exercise of undue influence has the burden of proving that fact. But there is an exception to that general rule, to the effect that where the evidence clearly shows the existence of confidential or fiduciary relations between the parties, the burden of proof shifts, and it then becomes incumbent upon the party who procures the contract or who receives the deed or gift, to show affirmatively that the transaction was entered into fairly, openly, voluntarily, and with full understanding of the facts. See Black on Rescission of Contracts, Section 253, and 12 Rawle C. L., 972, both of which authorities are cited in Rich v. Hallman,
Thus the burden of proof as to the bona fides and fairness of a transaction of this nature does not shift until the party alleging its invalidity has first shown the existence of confidential or fiduciary relations, or that there had been brought to bear upon the donor a dominant and controlling influence in behalf of the donee. The exception above noted to the general rule was dealt with very ably and clearly in Rich v. Hallman, supra, and in Peacock v. DuBois,
"In view of the age and infirmity of the donor, the confidential relation existing between the donor and the donee, the influence shown to have been exerted over the donor by the friends of the donee and by the donee herself and in view of other facts and circumstances peculiar to this case, we feel impelled to hold that the duty was on the donee to show that the assignment of the note and mortgage brough in question was bona fide and that it was not secured by undue influence, deceit or other improper means."
As I understand the able opinion rendered by Judge Adams in connection with his decree in this case, he did consider this question of undue influence and reached the conclusion that the evidence did not show undue influence, and that the only serious or meritorious question presented by the pleadings and the evidence was the question of the mental capacity of Frank Adams. In the beginning of *742
his opinion, he states that the bill of complaint alleged that at the time Frank Adams joined in the execution of the deed he was mentally incompetent and was subjected to undue influence, and that because of his helpless mental condition he was caused to yield to the force of such undue influence. His review of the testimony also indicates that he considered this question of undue influence. He quoted the definition of what constitutes undue influence as given in the case of In re
Starr's Estate,
Judge Adams also dealt with the question of the alleged influence of Mrs. Frank Adams upon her husband in business matters, and held that the testimony of Mr. Walton "dissipated that charge." He also discussed the attitude of the children of Mr. Adams, other than Mr. L.S. Adams, who filed the bill as next friend and against whom no charges of undue influence were made), and the attitude of the Saunders children; also, that of W.H. Walton and Clarence Smith, sons-in-law of Frank Adams, and acquits them of anv charge of bad faith or of trying to take advantage of Mr. Adams.
The opinion of the chancellor shows that after taking testimony for thirty days and listening to the arguments of able counsel, he had made a careful study of the evidence in the light of the authorities bearing on the case, and his final and conscientious conclusion that "Frank Adams was mentally competent at the time he executed the conveyance in question here, and thoroughly understood what he was doing, and that he did it in pursuance of his own volition and decision," shows in my opinion, that he considered and adjudicated both the mental capacity of Frank Adams and *743 his freedom from undue influence, and as stated in our original opinion, there was ample evidence to sustain his conclusions.
As I see it, our previous opinion and decisions affirming the final decree should be adhered to, and the petition for rehearing should be denied.
TERRELL, C. J., and WHITFIELD and THOMAS, J. J., concur.
BUFORD, J., dissents.
CHAPMAN, J., disqualified.