Ives v. Columbia CountyIves v. Columbia County
*1 30 SUPREME COURT OP FLORIDA. County Syllabus.
Ives v. Columbia contract'; becomes if it material and but would vitiate the shown the contract insurance would have been in the executed manner if that it was fraud had not perpetrated, been it can not then be said- to been have par. material. 14 203, page R. C. L. 1023. principle
Tested opinion, announced in we plea do not think the was to the amenable assault made defense, on it. good materiality It raised a and valid every plaintiff element of which in error was entitled to proof passed submitted to jury. The granting order motion was strike therefore erroneous. many assignments were There other predicated on the overruling order the court trial, motion for new admission of evidence giving and the of certain charges, but disposition they reason of this unimportant become a discussion of them purpose. would no serve useful
Reversed. J., P. J.,
Whitfield, Buford, concur. J., Brown, C. J., J. and Strum, Ellis concur opinion. Taxpayer and Citizen of
Florida, Appellant, Florida, Ap pellee.
Division B.
Opinion Filed June 1926. Chapter 11459, Special Laws of Act's of the Ses- Legislature approved sion. of the 24th November, 1925, held valid.
VOL. *2 County Syllabus. Ives v. Columbia — language 2. The inclusion of the resolution was in the which subject objection repugnant pro- the made of not the Chapter 11459, Florida, by visions of Laws of language County use of Board of provided the method to con- meet a tingency, contingency which if should it arise would required by to be met the identical method for in the resolution. Aii appeal from the Circuit Court for County; Columbia Home, M. P. Judge.
Affirmed. Huntley,
J. P. Appellant; for J. B. Hodges and Parnell, B. W. Appellee. for Per Curiam. Petition was filed of Circuit Court County, Columbia Florida, purpose of testing the validity of bond issue in $500,000.00, the sum of being issued county Commisioners of said provision under Chapter 11459, of Florida, Laws of an Special enactment Legislature Session of 1925, of approved day the 24th of November, 1925. published
Notice was required as such case and a tax- payer, Ives, was order of Court allowed to inter- vene thereupon payer the tax filed an answer as fol- lows, to-wit:
“The answer of F. II. a tax and citizen of Florida, to the bill of complaint of Co- lumbia organized existing under the of laws the State of complainant. defendant,
This reserving right excep- to himself the of complaint, tion to the bill of thereto, says: for answer day That March, 1926, on the 30th complainant filed its herein under and virtue of Sections 3296 FLOEIDA. SUPEEME COUET OF
Ives v. Court. Florida, 1920, seek- 3297, General Eevised Statutes ing the bonds men- validation and confirmation certain therein, tioned which bonds were issued accordance with Chapter 1925, by Florida, Special Laws Session the resolution Commissioners of said March, 1926, the 2nd appears Exhibit No. attached to said or bill' of complaint, and that day March, on the 30th Judge of said Court *3 filed said an and issued order directed to the State day and the same the Clerk of this Court, pursuant to Section Eevised General Statutes payers issued notice to tax and cit- izens of aforesaid, notifying the payers county and citizens of said that such presented, had filed and praying been for the validation and confirmation certain road proposed to be issued in sum of Five Hundred Thou- ($500,000.00) Dollars, claiming sand that such bonds had been authorized to be Chapter, aforesaid, issued such published according and such notice has been law, and reponse notice, this defendant in to said and leave of the says: court had and obtained answers and (1) That he is a tax County and citizen of the of Co- lumbia, matter, now in said says he intervenes County Commissioners the resolution mentioned, adopted before on the March, 1926, 2nd follows, in said resolution as to-wit: ‘ gasoline On the event that the said tax shall prove inadequate or in whole interest on the said bonds or to create a payment principal thereof at ’ maturity. County And that such resolution of such words, included following therein the to-wit: VOL. of Court. any
'And to inadequacies meet insufficiency in the amount received from the said purposes.’ for the said says this intervenor that the
And inclusion such words by Chapter 11459, above are not authorized Laws of Flor- ida, Special Session, 1925, and proceedings that the County the resolution aforesaid of the Commissioners, in- cluding such words relative to the issuance said bonds illegal invalid, presence because of such resolution, words such and that the Commission- of such ers of Columbia, aforesaid, enjoined issuing should be from sought the bonds to be issued under of Legislature, resolution such act aforesaid, because such resolution contains unauthor- illegal ized and words.
(2) And this intervenor further answering says, that above proceedings and all had mentioned under and taken virtue of such legal, except act are the inclusion of the quoted, words above and this interven- *4 ing payer prays tax of county citizen said enjoined of Columbia from issuing be the bonds mentioned in the of of because the use such unau- thorized words such resolution.” interposed Motion to strike the answer was as follows: complainant above, by ''Now comes its Solicitors undersigned, and moves court to strike from an- th§ payer F. swer of H. a tax and citizen of Columbia and filed an answer who has intervened under the Florida, paragraph answer, upon laws of one of said following grounds, to-wit:
(1) Chapter 11459, Florida, Special Session, That Laws 1925, relative to the issuance of road authorizes the issuance such bonds ;34 FLORIDA. COURT OP SUPREME Court.
Ives v. Columbia adopted terms of the resolution under the March, day of on the 2nd said objected to of the words authorizes the use of such answer. paragraph .such (2) contemplates in the event that plainly That such act prove inadequate should gasoline tax mentioned therein bonds, on pay the interest said or in whole a therein, tax sinking fund mentioned create the annually property upon all the taxable be levied should county purposes, for a county subject to taxation said bonds, interest sum to sufficient annually required to create amounts meet the insufficiency in the any inadequacies 'or and to meet purposes. gas tax to meet received from .amount (3) men- provisions of the act the terms and That under paragraph of said answer and in said tioned by such necessary objected to herein, that the words it is . n answerbe in order that issuance of said bonds used in the ’’ might protected. of such bonds holders entered and default was granted was motion This payers except Ives. against all follows: entered as Decree Pro Confesso was upon the mo- be heard came on this "This cause organized and tion by virtue of the laws existing under and against Pro for a Decree Confesso Florida, complainant, county, except F. H. payers of said and tax the citizens county, who has filed Ives, a citizen and answer have been herein, portions of which .an answer n stricken motion, have failed to suffi- upon all whom *5 petitioner’s petition herein to the ciently or demur answer sufficiently show 1926, or to day April, 24th on the not petition should why mentioned said the bonds cause 85* YOL. Ives v. Columbia County Opinion of Court. confirmed,
be and appearing validated and it that an order duly given has been made and published, notice and as provided by Section Revised General Statutes Florida, upon and that has there been a default the payers of all of tax the of said Columbia citizens County, Florida, aforesaid, except Ives, portions of whose herein stricken, answer has been all of payers County, Florida, and citizens of said Columbia ex- cept above, sufficiently plead, as or answer, failed to petition demur cause, to the said or to filed show cause why prayer petition reason of said should be not granted, appears by as the files of herein and said cause now before the court. is, therefore,
It upon due consideration thereof pur- notice, suant considered, ordered, adjudged, decreed,, allegations that of said to be taken as con- against payers fessed all of the tax and citizens of Columbia Florida, aforesaid, except F. Ives, H. complainant, petitioner herein, proceed ex parte in cause, all of payers as to County, Florida, citizens of said may as it advised.
Done, adjudged ordered and Jasper, Florida, at in Ham- ilton 24th of April, 1926.” Thereupon having plead further, refused to Court following entered final decree language:
“The on above cause hearing upon came further complainant, answer of the having hearing of Florida, and the same been set down for State, appearing the bill and answer of the and it given has hearing due and sufficient notice of been appears by the State of the files and records appearing it F. herein, and H. a tax further filed and citizen of Columbia has upon herein, counsel, por- an and that his answer notice to *6 FLORIDA. OF COURT SUPREME of Court. stricken, provided by tions of such answer have been as is law, appearing and it F. PI. further Ives has plead further, refused to and this been cause has set down by answer, answer, por- him on bill and and that his after stricken, allegations of the same been admits the tions have it petition, appearing of the and further that a Decree Pro duly by against has all the Confesso been court entered payers and citizens of said Columbia Flor- existing ida, organized and virtue and under PI. Florida, except laws of the State F. of the has had and to all Ives, given due notice been and in- payers citizens of said Columbia ap- PI. it cluding Ives, aforesaid, the said F. as and further pearing that statutes Florida authoriz- of the ing confirmation validation been and fully complied complainant; with completely final has application this for a decree that due notice of a tax given, had and that the said been represented before citizen of said argument same counsel, after of the court being proper order to counsel, the Court advised in said case. made adjudged, and de- is, therefore, considered, ordered,
It creed follows: cause and the jurisdiction of has
That this court hereof. subject matter hereto, and the parties petitioner, equities That the of this case with the county organized existing virtue of the laws of the State under prayed it is entitled to relief and that validation and confirmation of the the bill herein *7 YOL. 1926. 37 Ives Columbia of Court. — bonds proposed to issued petition and described the herein, hereby which is accordingly decreed.
And the court further finds, hereby decrees to be valid, legal binding in all respects, and validates and confirms, all of proceedings had and taken connec- tion with the of the bonds issuance peti- mentioned herein, tion including passage of the resolution of the County Commissioners, Columbia on the day March, 2nd of 1926, a copy certified of which said herein, resolution is pub- attached to the and the lishing all of notices mentioned in the and all things other matters and in connection therewith.
And the court further finds and hereby decrees to be valid, legal binding every respect, Chapter 11459, Florida, of Special Laws Session, 19.25, entitled; ‘An Act to authorize the Issuance and Sale of Hun- Five dred Thousand Dollars worth of of interest bearing bonds County, Columbia hard-sur- Florida, for purpose facing Road Number Road Number 5-A, State City from Lake hard-surfacing and for to the a road Benton, complete system and to build a Georgia Line via County; pro- throughout lateral roads to settlement final payment redemption of the interest and vide for provide bonds; appointment of said for the of trustees proceeds expenditure to handle the of said bonds provide upon what terms and conditions this Act go effect,’ copy certified of which is attached shall into together petition herein, with the notice an election rati- Florida, called and held qualified by majority act electors fication of such proceedings the Board of county, and all of of said holding calling relative Commissioners FLORIDA. OF SUPREME COURT County Opinion of Court. v. Columbia thereon, returns canvassing of the election, and the by the to be effective same proclaiming of the and the in and as is of the State of Governor finds that the resolution further Act; and the court of said Board March, 1926, day of adopted, on 2nd Dollars ($500,000.00) Thousand issuing Five Hundred *8 a Chapter, and bonds, for provided as worth of peti- to the is attached copy of which certified binding valid, 9, legal, and be No. as Exhibit tion herein County Commis- Board of respect, and every Florida, shall of Columbia sioners any or of the said year bonds ‘In each whilst be outstanding unpaid, there shall them in- pay annually a sum sufficient aside set sum sufficient and also a on bonds terest said principal sinking fund to meet the a to constitute be set sums shall so when due. Said of said moneys payable the laws any made aside out of of the to said Columbia of Florida part o£ proceeds the State Gaso- Tax for Chapter line Acts any amendatory Laws of acts thereof, duty respective be the it^hall County chax*ged receipt officers the said with the taxes, application gasoline of said so set axid xnoxxeys apply the purpose aside for paying creating sinking the interest and a fund payment principal bonds. for gasoline moxieys In the event that said or the any therefrom, by legis- reason derived shall for act be withdrawn from the use lative or otherwise County, Florida, or in the said Columbia YOL.
Ives v. Columbia County Opinion of Court. event that gasoline the said prove tax shall in- adequate in whole or in pay the interest on the said bonds to create sinking fund for payment principal maturity, at thereof there shall annually levied tax upon be all the property, subject taxable in the County to taxa- tion purposes, for sufficient to the in- terest bonds and also to meet the amounts annually required to set sinking as a fund aside maturity retirement of the said bonds at any and to meet inadequacies or insufficiency the amount received the said from purposes.’ the said in order to meet semi-annually bonds, the interest on said and to create a with which to retire same. And the court further valid, legal, finds and decrees to be binding, hereby decrees the validation' and con- *9 firmation of the bonds of said Florida aforesaid, in the sum of Five ($500,- Hundred Thousand 000.00) above, specifically Dollars mentioned and described in resolution aforesaid, such and issued so Commissioners of said as aforesaid. bonds, issued,
And the further court finds that said when hereby valid, be, they legal, shall declared to be and obligations binding bonds said Columbia county organized existing a under and including virtue of the State of the interest cou- thereto, pons attached and that this decree shall be forever validity of said bonds and the interest conclusive as County, Florida, coupons against the said Columbia afore- said, payers thereof, in- against the tax and citizens FLORIDA. OF SUPREME COURT County Opinion of
Ives v. Court. Ives, aforesaid, Clerk of this eluding the said each hereby to endorse on directed Court entry valida- of the of this decree of issued, a notation when required in by the statute confirmation, as is tion and provided. cases made proceed-
And cost of this the court further finds and that the ing court, shall be taxed the Clerk of this paid petitioner herein, shall the said Co- same lumbia aforesaid. Chambers, Jasper, at
Done and the Court at ordered notice, and after Circuit, pursuant State and day April, 1926.” argument aforesaid, the 24th as on this quoted appeal From was taken to the above decree assignment of error appellant Court and the filed one follows: 1‘ day 24th its order dated That the court erred in whereby it struck from the April, 1926, wherein and answer.” paragraph 1 of said appellant answer of this affecting urged as appellant, which is objection The presented invalidity bond issue and which was an answer, is the board of by paragraph one his 2nd adopted the Commissioners included provide funds March, which was a resolution set aside pay interest on the bonds and to sufficient to maturity, the' for the retirement of bonds at sinking words, “or the event shall inadequate prove in whole or the interest pay- fund for the on the said bonds or to create maturity.” principal thereof at And also the ment *10 any inadequacies insufficiency in “and meet words to amount received from the said the ’’ purposes. TERM, 1926. 41
YOL. Opinion v. of Court. Columbia Counts7 — quoted in full the Chancellor’s de- The is resolution objected are shown italics. and the words to cree question does not appears' It to Court raised validity issue nor does it bond address itself authority Commissioners to issue affect have bonds, no except, this: that Commissioners highways until right bonds for the construction to issue they fund for re- provided have anytime may however, at before demption. done, This disposed manner finally the bonds are sold or Lainhart, al., et Fla. authorized statutes. Potter 647, 33 Rep. South. language the resolution which
The inclusion of the objection repugnant subject of not was made the provisions Chapter 11459, Laws in the resolution the board of language use of this a con- provided method meet contingency if it should arise would be tingency, which provided for in required by the method be met identical the resolution. in the of the Chancellor and the no error decree
findWe therefore affirmed. same is
Affirmed. J., J., J. Buford, Terrell, Strum, C. Brown, concur. J. J., Ellis, dissent.
Whitfield Justices, dissenting. Ellis, Whitfield County issued under which the de- The act hardsurfaeing in scribed 28, among purposes No. other Road and State 5-A Road No. *11 SUPREME COURT OF FLORIDA. Dissenting Ives v. Columbia County Opinion.
for which funds could raised the means outlined the act. objection appellant
The raised to the validation County bonds is of the Board of providing issuing of the bonds which by Chapter were 11459' authorized Laws of Florida, Special Session, 1925, and ratified voters special at a election held for the purpose of deciding whether the act effective, should become should pro- not have levying vided for of a for interest and a principal and should not have contained the condition that the only tax was to be levied in the event apportioned by the State prove inadequate should part in whole or in purpose. only
The containing question presented clause answer was stricken and the bond issue was validated on default.
Upon point presented the answer of the intervenor we think the decree of error; the court was within but we agree proposition are unable to necessarily involved record, in the that the act was which valid undertook levy authorize the of Columbia to and assess a tax purpose, namely: for a State the construction 5-A State Road Nos. question upon views out length
Our set at in the dissenting case opinions of Lewis et al. v. Leon in December, 1925. decided