*1 4 rights tо the prejudice trial resulting judge, likely 82 Fla. Payne, v. Payne
of the also plaintiff error. See reversed chancery 89 where a decree So. Chancellor deciding that in case when appeared it intent of and purpose misapprehended or overlooked of the an on the decision applicable having bearing controversy.
Reversed and remanded for a new trial. Whitfield, Davis, J.,P. Terrell J., and and concur. J. Buford, Brown, J.,C. J., and Ellis concur J. opinion judgment. Rehearing.
On filed opinion decided Per Curiam. This case was 24, 1932, rehearing herein оn after which a September on granted. rehearing consideration case Further, has failed to the Court error convince any that there previous its therefore opinion, said opinion judg- 24, 1932, ment of now September should be reaffirmed and so ordered. Reaffirmed on rehearing. Whitfield, Terrell, Buford; J., Brown and concur. J. Davis, J.,C. absent from oral argument partici- —not
pating. LaFayette Board Public Instruction County, v. First National Bank of Gainesville. 738. So.
Opinion October 1932. Opinion Filed Rehearing June *2 Lester Sum- McCollum, Doggett, Howell & Doggett, Error; mersill, for the Plaintiff in *3 Error. Jordon, for Defendant in Hampton & 14, filed July declaration Commissioner. The Andrews, De- On that: first count 1925, in substance alleged a regular at and 1920, Board 6, Dеfendant the cember that the which, reciting after session resolution adopted funds success- need of were “in schools of the work, the Board deemed that and on their fully carry the Chairman authorized money,” borrow some neces'sary to borrow Superintendent the County Board and of the the $20,000.00 plaintiff from the bank and at interest 8% Oak; the was Bank of Live resolution First National Board; the that on December all the members of by signed and the Board’s Chairman the Su- following 20th resolution, perintendent, pursuant acting procured toi the $10,000.00, the bank to the Board lend and to evi- plaintiff dence same executed and the delivered to bank the note on, sued in six months with payable interest at 8%; received, the paid, the bank Board the $10,000.00 “for purposes the uses and aforesaid.” count invoked the allegations The second of the first 20, 1921, on count and in addition states that De- the June the¡ Plaintiff in was' indebted to fendant sum $10,- the loaned money 000.00 for Plaintiff to- the Defendant Defendant, on at the request December of the for the purpose of and all paying any legitimate expenses incurred, “or to be incurred” the Dеfendant in operating LaFayette schools of (The County. phrase quota- A was tions above stricken demurrer motion.) was out on sustained to a third count.
Defendant all which were stricken filed seventeen pleas, 5, 11, 7, 1928, 1, 2, 4, numbers August except 17, which (1) as follows: reso- were substance That the lution for the passed was at borrowing money Board, regular denied resolu- meeting (2) that the tion was signed the Board members at a regular meeting that on alleged the resolution was contrary signed at different times and several places by the members of Board, respectively, Board never (4) alleged denied that the (5) money indebted alleged, n borrowed purpose paying legitimate expenses schools, incurred in the operation county public free that at borrowed the (11) alleged time Board had borrowed that same more than already year of its estimated budget and the loans had not previous 80% been repaid, denied (13) Board ever received any *4 part $10,000.00, of (14) the alleged affirmatively the that money was received the by not Board for the of purpose paying legitimate exрenses' incurred the operation of the schools, county public free (17) denied the execution and of delivery the note. joined Issue was on these pleas.
At trial the the allowed Defendant to file two addi- tional pleas which in that alleged substance prior to January 1, 1920, the said $5,500.00 Board had borrowed which had not been when the repaid instant loan was made De- 20, 1929, cember as statute. required by record the The two on .these joined not issue to show whether fails pleas. additional Chairman the “note” executed the
The copy of the the with resolution Board together of the Secretary Board, were attached Board, members signed by bill of action particulars. the caus'e of this in 1925 until 1930 From institution of suit Judge before LaFayette County was conducted in litigation Horne, that circuit. judges F. presiding M. one of Plaintiff made November application venue to Columbia the same circuit change County Plaintiff that it not ground that feared could obtain a fair trial in in that LaFayette County boundaries of taxable for school property county purposes are 'co- that the extensive with the tax- County LaFayette payers' county jurors would sit 'as necessarily in the case arid would financially interested ad- therefore Plaintiff; versely to the anxiety that there general throughput the state over rates' of taxation and high there few eligible but service jury were LaFayette are who not taxpayers, such of those as might if jury taxpayers summoned for would duty con- stant association entertain similar thus prevent views and Plaintiff from a trial before securing disinterested and .the It impartial jurors. appears also that the case had bеen so that the interest on loan pending long would amount to as much as the nearly principal. Plaintiff county. a non-res'ident of the Affidavits were filed support application by citizens setting up - the above facts and substantially stating they did not Plaintiff believe the bank could obtain a fair tidal in La- affidavits, County. Fayette Several were filéd on behalf of the Defendant citizens of that county stating *5 trial impartial Plaintiff could obtain a fair and county. venue change for 13, 1930, motion
On November called was' when case April granted the De- County, Horne Columbia trial before Judge for County, LaFayette case to fendant remand the moved to Board had Defendant that (1) for trial upon grounds LaFayette absolute to have trial case right the trial had beeti exhibited County, facts (2) no adjudicated court upon might properly court which the of venue. The motion conclusion in favor of a change denied, to remand and after the two above allowing additional to be filed to the declaration the De- pleas fendant the trial which upon was had the issues' resulted $17,882.27 in a directed verdict for cost in favor of Plaintiff, from writ which of error duly taken to this Court. are
The first and second based upon error assignments Court’s' motion ruling (1) granting change venue and the Defendant’s (2) overruling motion to re- mand the cause for trial to LaFayette are County. They here considered together.
If the
jurisdiction of
Circuit Court
Columbia
did not attach
case not
reason of the
re
being
would,
movable this
alone
if
point
decided in favor of De
.
fendant, effectually dispose of this appeal Green v. Wil
son,
723;
etc.,
27 Fla.
8 So.
Tampa,
R. Co. v. Tampa
.
Co.,
R.
S.
Fla.
tion, the is local action the upon, ground in this State. a new sitory. question This be appears to L. Florida It C. G. is observed that Section tried” issue to be any interested pers'on in provides that “no no' shall be person in cause but that juror shall be a any “the from in a trial suit in which disqualified any sitting a party is municipal corporation” county state any or or within is' a “taxpayer the that such person reason of fact corporation.” county municipal the state or such conveyed by The leading thought above any to be tried” in “no interested issues person therein, juror cause be a but fact that a citizen shall the mere aof is “a county ipso therein does not “dis- taxpayer” facto him from, as a qualify” sitting juror suit in which any is a “county” party by reason “interest” in the out- come suit. of the The statute does' not undertake to state subject citizen cause” may not for “challenge a his rеason of being taxpayer county, for his pronounced interest may cases and inci- only some dental others. Section L. of C. G. Florida 1927 (second paragraph) specifically authorized a ground “for if challenge cause” the juror has “any interest” in' the suit, trial, also authorizes to excuse juror any court who in, indifferent “does not stand the cause.” In that a this in error contends connection Defendant Board County of Public does occupy Instruction same status legal Board Commissioners of a which county State, is a political subdivision nor thаt aof which is cor municipality entirely spearate porate that of State. Con entity any county provide stitution but does not in for recognizes terms of a of Public Instruction nor its creation Board status as It is observed Section 9 of corporate entity. Article
'll that all Florida provides XII "of the Constitution of Board of “County school funds “shall be disbursed” Public Instruction” and maintenance support solely1 free schools some declared to be public principle *7 determined the Legislature.
The Section Legislature by 523 C. G. L. of Florida “The County constitutes Board of Public Instructiоn” of each “a “in county body corporate” and that name ac- may personal and hold real and quire property” “perform acts for educational corporate purposes.” other It there- is fact, least a In quasi-public corporation. fore at a former appeal this case (93 Fla. 111 So. it 521) was held that the Board was not “a branch of the merely Sovereignty of the state” but “a county instrumentality, a corporation organized to conduct certain affairs particular county”; held also that a Board of Public Instruc- tion being created a body corporate sue may implication and be sued on its legal contracts of lack of a regardless Specific statute such even such giving right, though boards under operate certain limitations statutory upon its powers. The statute authorizes' such any Board to borrow money (Section 566-568 L. C: G. of Florida 1927) and by neces- sary implication Board would have to execute power pf such with in accord indebtedness as would be evidence us'ual law. practices, business when not inconsistent with does nоt the form of undertake to provide evidence of such indebtedness to be executed such Boards when “borrowing' money.”
It is evident from very various decisions in this country one of powers inherent in court any under the com- mon is' the law grant of venue when authority change deemed necessary to secure a fair trial before a jury having
12 no R. interest in result of the verdict. C. pecuniary ' (cid:127) L. 810 Section 30. with respect actions local in character Originally all were to their venue could where brought only the cause of action arose. lаter classified as They were An where the transitory local and action was' transitory. 'transaction which was founded have taken might place it local where the transaction anywhere was considered been consummated in place could only happened 433; Balfour, where was made. Fla. 136 Linger v. So. 931-933; J.,C. 27 R. pages Generally 786-787. C. L. transactions out of contract are class'ed as arising transitory and the common law held such actions transitory regard- less of the contract executed place where and to performеd. 27 C. L. 801 Section 22. Cons'ummation R. loan to Board could have been made legally any- *8 where the State exchange proper papers the and the the authorizing evidencing obligation paid by the Plaintiff. 4219 of Florida Under Section C. G. L. “Suits shall * * * in the where Defendant re- onfy county
be the begun occurred, sides, or where the cause of action or where the is.” Section 4222 C. G. L. of in Florida property litigation against corporations shall be provides 1927 “Suits com- in the only county menced where such corporation shall an usually keeps have оr office for such transaction of busi- ness, or where occurred, the cause of action or where the in property is.” It is litigation thus seen that first above the the venue of governing statute suits against per- natural sons is same latter practically the ás the which suits governs' against corporation's. the privilege These statutes confer n Upon a Defendant in tó be sued the but places'designated counties', that it be in requiring though one of such brought
13 not shall be him suit county to elect which permitting Trobuck, brought. Santa Rosa v. 77 Fla. County So. 748.
It can well its supervisory said that in exercising powers determining schools of the and public county over to s'chool the need for loan and the proceeds the applying the Board in a purposes, governmental capacity acting requirements tvhich is circumscribed certain statutory limitations; resolution, but in adopting preliminary authorizing and the evidence of indebtedness executing the sign thereof Secretary Chairman having s'eal, acting corpo- affix the the Board was its corporate “promissory brought upon rate suit capacity. statute doеs (the the indebtedness note” as the evidence of a prescribe corporation. the Board as form) against true, venue change This the rules' being governing obtain, it must as to any ordinary quasi-corporation or to borrowed obligation repay money brought in its corporate capacity. Cashin, v. Humphrey’s
It was held case of that “where the statute permits 128 Miss. So. thereof, enter or into brought a state subdivision to in the absence of a subject, suits as a litigant, becomes all provision contrary, rules' gov the court in procedure other cases.” erning Also held that the Plaintiff was entitled to a change venue when it is made appear in a civil action against such Plaintiff cannot obtain fair trial in the court where In pending. cause Mississippi case the above *9 for the grounds of venue was change “because of the undue influence of the President and members of County’s- the see, Board of Supervisors.” however, We do1 that there could have been material any difference had the pe im
tition for the upon ground been change based in their reason of partial could not obtained jury be terest of case. outcome repay had refused The to' new Board in the instant case this, the natural' course borrowed over influence doubt have had events would no some petition change suit, though outcome the present usually was not a upon based but ground, upon ground trial fair serious as it of a goes, right more to directly a which has no interest” in outcome jury “pecuniary case. The matter the Plaintiff in presented by next error no shown sufficient authorize a change facts were venue. support with facts tendered in grounds alleged,
thereof a of fact principally upon are founded statement summoned for the trial in La- any jury case Fayette County necess'arily composed taxpayers would would be interested in the thus outcome 'financially any judgment the case would rendered they pay their assessment levied their property. verdict out, (Section As our statutes 4451 C. G. already pointed that no 1927) provide person of Florida shall be “dis- L. aas reason of sitting juror by from a tax- qualified being where trial may had. A payer similar Florida 4153 C.. G. L. of (Sectiоn 1927) provides that no shall be from judge “disqualified” in the trial sitting in which any county is a any party suit by reason that a taxpayer is' therein. In judge such the case of State Call, Judge, rel. v. Circuit Fla. ex 26 So. filed a bill taxpayer enjoin wherein a the County Com- from tax in levying missioners special special sub-s'chool Call resided and Judge district in which was a taxpayer,
15 sit to disqualified was' Call Judge was raised point outcome in the interest the case of a direct because said: the question upon in passing This the case. Court in the interested directly “It Call Judge is evident that * * * The Judge’s before him. result of suit instituted with that of common the district was property interest If no therein. Hart, other taxpayers and all complainant, section of in this' than the legislation other existed state arise could as to Revised referred to Statutes no doubt in the case.” judge present disqualification “embraced only held that the said statute Court further letter and and does within the not clearly spirit” apply cases' districts which is “neither a tax levied to a sub-school municipality county.” a the above construction
Under
said
would
to a
Board of Public
aрply
Instruction
it is not
but
municipality
separate
an entirely
entity
non
status,
that of
far as
so
its
county,
legal
powers
Blackstone,
liabilities are concerned. See
220.
Cooley’s
p.
one’s
tried
jurors
To
who
rights
have no in
before
in the
a very high
outcome of
case is
legal
terest
privi
system
in our
of jurisprudence; such
lege
special interest
must,
disqualify
however,
order
a pecuniary
interest
results of the action.
Freeman,
Sauls v.
24
Fla
525. See also State v.
4 So.
Chillingworth,
The third the Plaintiff in Error proposition pres’ented by not, here in view is that the action sued cause of *11 by other theretofore made outstanding unpaid loans Board, Defendant validated the enactment of by Chapter Florida, Laws Plaintiff in Error con- here as, that $5,500.00 tends inasmuch that appears there was' for said outstanding obligations by borrowed Board money the previous scholastic which had not been during yeаr, repaid 20, 1920, on December more than 80 per that cent, of estimate needed for that had year been already borrowed when the obligation made, here in question was $10,000.00 the loan of here question unlawful subject to validation said Act of 1921. year” “school 1st each begins July year and ends 30th of the following year (Sec. 496 C. G. L. 1927), June and a county school board is authorized said Section 566 to borrow amount not exceeding 80% amount as' “estimated them to for main- required be tenance of the s'chools for the scholastic ensuing next year,” which must be “in full paid before the Board shall be author- ized to borrow on the estimate of any succeeding year”; also provides that the money so borrowed may used for be pay- “all ing outstanding warrants and all other legitimate ex- penses incurred in operating” the schools of the county.
It is observed that the maximum amount fixed by the bemay borrowed is of the estimate 80% amount required total current meeting expenses during the ensuing and not year, of the anticipated revenues 80% that may be actually collected. This anomalous provision is pаrtially remedied by Chapter Acts of far so as the amount of revenue “reasonably expected to re- be ceived” concerned, the state is but this statute no has from reference to revenues solely “derived from the County” as fact, in the instant case. In under said Section 566 borrowed, amount bemay statute is con- far s.o taxes ac- cerned, the amount of far in might excess tually collected. statu- its Board
But exceeded that the School assuming before funds tory additional authority borrowing amount $5,500.00 it exceeded alleged was' repaid collected, clear, of taxes which does not appear to then vali- question arises as said to the effectiveness of the act dating validating in this suit. Said obligation n provides' act that: warrants, “All and other outstanding county *12 of Public in in Florida Instruction the state of any county Chairman, and duly signed by Secretary, its attested its by teacher, in for and consideration of performed services for labor materials furnished in the con- performed and thereto, furniture, struction of additions school or buildings equipment same, or for supplies' or loanеd for to and received such Board Public Instruction of for educational'purposes prior interest such loans for 21st, 1921, May in are all hereby respects declared to legal obligations.” binding (Italics ours'.) It must be noted there are evidences of indebtedness cannot board; issued legally school in example, the case of Board v. State Public Instruc- 1152, tion of Indian River 357, 98 Fla. County, 125 So. this Court said:
“The Constitution an contemplates annual budget for School and does not County expenditures contemplate time warrants bonds shall interest-bearing or bе issued and raise School County sold to funds for s'upport and main- free schools.” public tenance of evidence of indebtedness in case is not instant effect a bond or interest-bearing time warrant. This
18 notes or “bonds between Court made a distinction has current that of bonds, bonds” form effect evidences or similar *13 Instruction, 470, Public 253, 93 Fla. 112 So. Legis “the lature a curative even may bonds Statute validate origi nally issued authority, provided without the Legislature could have authorized the issuance the of bonds in the first Greer, place.” 249, also Nuveen 88 See v. Fla. 102 So. 739, 1298; 37 A. L. R. Charlotte Harbor & Northern Ry. 770; Wells, same, Co. v. 78 Fla. 82 So. 260 U. S. 43 S. L. The Rep. Ct. 67 Ed. 100. latter case holds that authorized, “what-the Legislature could have can ratify, if it can at the time authorize ratification.” (cid:127) here sued obligation upon was made The payable June 20, 1921, the act validating became effective May 1921, before became If obligation the due. the Legislature could have' authorized School Board to borrow the the $10,000.00 21, Í921, here question notwithstand May $5,500.00 the ing year said the school borrowed previous not or other may have been reasоn repaid (for legal s'ome 21, 1921, operative then act wise) May the validating as to such does not obligations. directly .The Constitution or it in such even impliedly prohibit legislation, though *14 suit simple
maining virtually issues' on this become appeal action, -particulars. or of with note as the of bill cause re- the evidence that all transcript shows after left admissible, anything if ceived that was there was little money that the .for a It jury undisputed to decide. was' pur- school for current plaintiff borrowed from and used poses. the Act if validated
It is clear that -the note аlso pleas defendant’s1 that issues raised the.other to, declaration, were heretofore referred specially eliminated. Court, statutes, of this former decisions
Under our and error as to any no be reversed for judgment any should opinion unles's procedure pleading .matter case, Court, it shall after an examination of entire this resulted complained errors appear Laws, 4499, Compiled General miscarriage justice. Sec. are not this we able to Applying say rule of justice. errors of resulted in a complained miscаrriage judgment no reversal error the the trial Finding court is affirmed. hereby record in cause having
Per Curiam. The this been con- Court, the foregoing opinion and prepared sidered Acts of the Court Chapter adopted by under considered, it is ordered and opinion, its adjudged by be, of the court judgment Court below affirmed. is hereby, s'ame J.,C. Buford, Whitfield, Terrell,
. Brown concur. J., Davis, J. J., dissents.
Ellis, is no (dissenting). showing Ellis, J. —There attempting Public- Instruction in to borrow Board L. provision within the of Sec. C. It came G. does not *15 Fund, appear that in the there no School warrants., applicable to school of рayment outstanding I think the is mot applicable validating act venue was' improperly changed.
On Rehearing, Granted. this C. decided by case was originally J. This Davis, Court on 8, October 1932. 143 Sou. See foregoing opinion, Rep. 738: Owing involving to the cases pendency of other duties, kindred and related questions rights, concerning the Instruction, (cid:127)obligations burdens of Boards' of Public when sued in ah action at in debt law enforce a liability to for the payment of money, a rehearing granted ordered, reargument reference had especial being to proposition just stated. case,
Since the of reargument .this Court has con- this sidered and decided the case of Board of Instruction Public 153, v. (opinion filed March Kennedy 109 Fla. 1932), Rep. 147 Sou. wherein reviewed and restated by the, Court, this legal liability boards in school' Florida, as Well as the State circumstances under which at recovery judgments law be had may them as against obligations a means' them incurred enforcing on lawful contracts, lawful debts. What was said in that is all that opinion necessary again is stated and reaf- us in disposing firmed case pres’ent on rehearing, wаs involved in the present insofar as case the- liability error, board, as a school plaintiff judgment an action at law. law propositions peculiar other this' particular heretofore which were discussed and
case decided in .the former filed this suit opinion on October are on this also reaffirmed rehearing. herein, heretofore filed opinion
So on the authority filed our latest opinion stands' modified opinion case, Instruction of Board of Public of Okaloosa the court County v. below Kennedy, supra, judgment of reaffirmed. herеby *16 Judgment rehearing. reaffirmed on concur. Whitfield, Terrell, Buford, J., Brown J. Ellis, J., dissents. Railway Dorsey. Line
Seaboard Air Co. v. D. A.
En Banc. Filed
Opinion November 1932. Opinion Filed Rehearing July notes school made, evidences of the Board debt issued and delivered by
Notes
notes
in the form of
“obligations
“current
paid
indebtedness” which are intended to be
out of
Flagler
revenues.”
Board
Public Instruction
See
McKenzie,
39,
County v.
103
hibits notes interest-bearing warrants issuance in effect “which are bonds.” Board Public Instruction v. supra. Union School Furnishing Company, obliga character, tion involved but is here made funds; therefore, we no good out current see payable reason for were not validated obligations thes'e holding The fact that interest under said Acts of 1921. in judgment very large added makes the principal should not against cumbrance militate upon claim; the fact that it was not when due paid appeаrs likewise, if the plaintiff been no fault of the plaintiff; loan financial was misled into statement making the time, made the Board at the the defendant is' placed of it. poor! to claim A very position advantage School Board in its acts as a should be held corporate body same as an integrity liability individual degree and it well to successors office as1 applies prede created cessors who obligation. Act Having held to and applies validates oil here we can s'ee no question useful outstanding note to be served a discussion purpose of the remaining as- error, if signments was validated the re- note