*1 In probable these circumstances it is has this Court under power provisions Section C. G. L. to amend the matter judgment suggested the order of the Court. J., concur. Brown,

Terrell, J. R. Administratrix as of the Estate of Logan, Elizabeth deceased, Logan, v. The Board of Public Instruc John tion, Polk County, Dis Representing No. 1. trict Polk County, Repre Instruction,

The Board of Public Special Tax senting School District No. 1 Polk County, v. Elizabeth R. as Administratrix of the Estate Logan, Logan, deceased. John

158 So. 720.

En Banc. Opinion Filed January *2 Edwards, E. C. & Plaintiff Wimberly Huffaker Error, Logan. *3 Trantham, Error, Allen and for Defendant in W. P. T. S. Board.

Statement. statutory The followingorganic C. J. Whitfield, pertinent are consideration cause: provisions of this .the XII, 10, au- Original Section of the Article Constitution the coun- thorized for division of Legislature provide the districts', for bi- the election ties into convenient school years three to hold office for two ennially school trustees the the dis- and have the of all schools within supervision trict; school to ex- levying and for of a district tax not ceed three use of public mills on the dollar for exclusive vote of free a upon majority schools within district An adopted amendment qualified district. electors mills increased the to not ten on millage exceeding removing to the A proposed dollar. amendment section November, the polls the tax limit defeated at was that: Section Article XII provides a town constitute “Any city may or incorporated Ten expended Section may District. The fund raised school building for repairing in the where levied district text-books, libraries and school houses purchase for teachers, educational purposes, or for so for salaries among that the distribution all the schools of the district be equitable.” XII,

Added Section Article adopted in 1912 was amended in the Legislature authorized with specific limitations, to provide special tax school districts to issue bonds for exclusive use of public free schools majority within tax a special such school district are qualified vote electors thereof who freeholders. The the State contain the following: statutes of unit; “Each a shall constitute school all subdi- county visions of a purposes school designated shall be districts; as school all school districts a levying school dis- trict special tax shall hereafter be as designated tax tax, districts, and all schools district as receiving any special tax G. L. (560) schools.” Sec. C.

“Whenever a tax school 'district created and special elected, the supervision are shall have of all they trustees position within district. The public schools said trustees, supervisor superseded by shall be that of and the duties law for the shall be prescribed by supervisors per- *4 formed trustees. The of trustees shall not powers the control, be those of but of and shall ex- supervision only, district, all special tend to the schools within the tax public ” * * * Sec. 709 C. G. L. (568) “All within a tax public special schools conducted school district shall under the direction and control of the be superintend- board of instruction and county public county laws, districts, ent as in other and to the same rules subject schools, and for the of regulations prescribed conduct have power that the shall to nominate except trustees the instruction teachers for public to board of all county the ** 710 (569) within district. Sec. special schools such G. L. C. right

“The board of trustees shall have further to say of raised within what the school funds the dis- proportion buildings, to on applied any year repairs trict shall be libraries, to of buildings, to school salaries teachers' and Provided, educational that shall purposes: they to other among make a fair and distribution of the funds equitable tax which all the schools in the school district shall special be in their estimate.” C. shown itemized Sec. 711 (570) L.G. trustees, be the these on or

“It shall of before duty to an July first of in each itemized esti- day year, prepare mate, of amount showing money necessary likely and county be for the of the school funds supplement raised to the district for the next scholastic appropriated ensuing year, certify millage therein rate of voted to be upon assessed and collected the taxable within the property ** tax school special district Sec. year. that L. (571) C. G.

“It fur- shall be the tax assessors county duty nish to the boards of instruction their public respective . counties on before the first of October year of each day the total amount school special district tax assessed special (573) each and school district.” Sec. 714 every tax C. G. L.

“It be the instruc- shall duty county tion for the salaries of teachers apart to add the amount set in each within tax school special school district school, this made for appropriation the length determine the salaries teachers and continue, that the shall and contract with term fund, from both for the full that said arising teachers term fund, tax special will sustain county appropriation *5 the school. The part of this fund from the arising special paid tax shall be to the teachers of upon the order county- the board, upon reports approved trustees, based the same by the as other school funds' are the upon endorsement of supervisors.” school (574) Sec. G. L. C. n “The tax special fund set apart the board of by trustees for the of payment teachers shall not be subject requisi- tion for purpose trustees; other esti- any said the by fund mated for other purposes educational shall be paid by out warrants board public county of of instruction of the treasurer, upon and county said warrants be based upon trustees, requisitions made by board of accom- panied itemized bills for things purchased or work per- formed. All special funds collected within school district shall be disbursed for school within dis- solely purposes collected, in trict which the tax is and as near as practi- cable, collected, year in which the tax the rec- Provided, of of ommendation the board trustees: that the with of any trustees shall make no contract its members consideration.” Sec. 716 embracing any monetary (575) C. G. L.

“The trustees of school district shall be a corporation sued, and and perform hold sue may property, other and functions, corporate the usual duties perform necessary same, li- provide buildings, purchase repair Provided, braries and school that no debt appliances: approval shall be created county without board G. L. public (576) instruction.” Sec. C. there in the ap-

“When is no county fund to the school warrants is- plicable payment outstanding State, sued instruction this any county public instruction the several coun- boards of ties in are hereby empowered this State authorized *6 at a rate borrow of interest not to exceed eight per cent, annum, per all purpose such out- paying warrants, standing and for the further purpose of paying any and all in legitimate expenses incurred operating Provided, however, schools of said county: it that shall be any county unlawful for school board borrow any sum cent, in one in excess' of any year eighty per the amount as estimated required them to for the maintenance of the common necessary schools of their county the next scholastic ensuing year the manner 561, 13, by Section Sub-section prescribed which said sum so borrowed shall be in full before the board shall be authorized to on the estimate borrow for any succeeding Provided, further, that year: in this nothing law shall be conArued to any invalidate outstanding of any county debt due, as now existing due, and now or to become or as re- quiring any instruction pay the same in full before being permitted borrow eighty per cent. On estimate for the next ensuing or to year, prohibit any board from at funding refunding maturity its any debt 1st, created and existing on or before A. July D. cent, being thereby prohibited from borrowing eighty per of its income for the ensuing year, as provided above: and Provided, further, no that school board shall after July incur 'in debts of nature excess of the estimated amount, except as herein provided.” Sec. 566 (455) C. G. L.

Each Board of Public Instruction is directed: of, “First.—To obtain possession hold, accept and under title, proper as a corporation, all possessed, ac- property quired or held for educational purposes, manage dispose of the same for the best interest of Provided, education: nothing this law shall be so construed as prevent tax any special school district from has, it holding property that or may hereafter ac- *7 for quire, purposes, school or such prevent from districts their receiving portions of set for money apart school pur- poses.

“Second.—To locate and maintain in lo- schools every needed, in cality where they may to-accommo- date, practicable, as far all youth as between ages of six and twenty-one not years, during less than four months' in year. each

“Fifth.—To do whatever is necessary with regard pur- chasing or school sites and renting premises, constructing, repairing, furnishing, warming, ventilating, in order keeping houses, or the school improving fences, out buildings, land and movable property, procuring proper apparatus for the schools, and grading classifying pupils, and providing separate for the different classes in schools such a manner as will secure the attendance largest of pupils, promote the and harmony school, advancement of the and establishing, when required by patrons, schools of higher grades of instruction where the and number pu- advancement pils require them.” Sec. 561 (454) C. L.G.

“All unpaid warrants, notes, outstanding, county school made, and evidences debt issued and delivered by the board of instruction in in public any county the State of Florida, chairman, and its duly signed by by attested its for in and consideration secretary, of service performed as teacher, for labor and material performed furnished in the thereto, construction of school or buildings additions fur- niture, same, or equipment supplies for the or for money loaned to and received such public board instruction for educational and purposes loans, for on such interest are, in all May hereby respects, prior validated Provided, and declared legal to be and binding obligations: however, warrants, section any shall not apply to notes or evidence indebtedness of board of public in- struction consideration or purchase where the price agreed therefor, to be furnished said board or thereon, to be loaned said agreed has' not been fully furnished received by issuing to and the board the same.” Sec. 577 C. G. L. C. As stated the trial final court its J. Whitfield,

judgment, this is an action on common counts on counts allegedly expended borrowed purposes Special Tax School 1 of District No. Polk County, Florida. The latter counts are construed to he counts,” “amplified common the action regarded as *8 brought to had recover and received. The “amplified amended declaration common contained counts numbered 7 12 and common counts 13 to numbered to 7

Counts inclusive state six specific claims' of the nature, general same with endorsements of interest pay- ments, 7 being Count as follows:

“Count That on 28th, 1923, or about July Seven: at the defendant, request said lent Logan to the John defendant for the exclusive of use free schools within the sum said Tax School No. District $15,000.00, of repaid upon to be demand with interest at the annum; of eight rate cent. per per and that there- (8%) upon, indebtedness, and in order to evidence the said date, defendant, upon said executed and delivered to the said its demand Logan school warrant No. 2169 for John him repayment said sum with interest aforesaid; that, time, as' from time the defendant has warrant, renewed school the said that finally, on June 15th, 1925, executed and delivered defendant said 2077, in its last renewal Logan warrant, No. John words and figures following, to-wit:

“State of Florida $15,000.00 “No. County “Polk Board of Public Instruction bear the rate of To interest at School Warrant 8% per annum from of presentation date Seal of to date notification as provided Board of Public of Florida. Chapter Laws Instruction “Pay Logan Fifteen Thousand Order of John from Lakeland Special to the any money belonging Dollars Tax Fund 1 for Given for District No. Loan at Bartow, 1925,........ 19........ this............day of June Fla., “Countersigned A.

A. B. Connor Garrard, J. Chairman Secy, County Board. Supt. Schools ON BACK ENDORSEMENTS Logan “John 6-15-27 6-27 Interest Paid to $2400.00 6- “Mrs. E. R. L. *9 6-15-28 Paid to

6-12-28 Interest $12.00.00 6-15-29 6-17-29 Interest Paid to 1200.00 600.00 12-15-29 Paid to 12-19-29 Interest 2-15-30 to 200.00 Interest Paid 8-12-30 to the Logan by the said money lent “That the so John the de- Logan the said of defendant was borrowed John in free schools of the use for the exclusive fendant used; that, district, the so so and that lent was said in further recognition obligation, said defendant 28th, has on said loan from regularly July interest 15th, 1930, out of February applicable funds be- to said No. longing Special School District but that 15th, since said defendant has failed and February refused to further interest on said or of pay debt any any principal, although frequent been on demand has made defendant for warrant and the in- payment of said thereon, terest that that at the has accrued time of in said the defendant had possession demands its con- applicable trol funds to said Tax School belonging District No. 1 in equal or principal excess said sum $1,500.00 interest thereon. and the due the plaintiff sues the defandant and claims “Wherefore, $150,000.00.” in damages the sum To counts inclusive the following pleas were filed: “2. And for a further plea the denies defendant that the have been money, alleged loaned the said Logan John defendant, to’the was borrowed the said Logan John use of the free District, exclusive public schools of said and denies' that the so lent was so used.

“3. And for counts, a further each plea to of said defendant denies that at the time of demand for payment, counts, as set forth said or at other time, defendant in its having possession and control applicable funds be- District, to, to said longing equal excess prin- loans, cipal of said

“5. 12, inclusive, And for a further plea to counts 7 to the defendant that it never was says indebted as alleged.” was on the joined

Issue second and third pleas. inclusive, To all the counts 7 the plea was of the counts, issue on common viz.: general “never was indebted

195 “a which when denial plea proper operates as alleged,” as fact from of the de- liability of these matters of which The “as a denial both of the operates fendant arises.” plea and the existence of those facts' which money receipt a to the use of receipt receipt make such the defendant by Practice, Common Law Crandall’s Florida plaintiff.” Sec. 156 and Florida Law Plead- note. Carson’s Common 64, 110. Circuit Court Law Actions. ing, page Rules, Rule 252; Burks, 68, 70, 87 Poppell v. Fla. 99 So. v. Cul- Jonas 515, 47 an parties Fla. So. 351. “The action pepper, v. by are bound made in Conrad pleadings'.” issues their 2, Fla. So. Jackson, by Judge

It that the cause shall be tried stipulated was by (2691) a as authorized Section jury without cause tried a state- G. L. was By stipulation C. facts, which of facts' includes: ment of statement and described The mentioned “1. school warrants 2080, 2191, 2155, declaration, 2079 and Nos. as to the manner objection without shall be filed in evidence of interest here- The total amount and form of execution. re- shown on the correctly warrants is tofore on said * * * verse side of each said warrants. Lo- amounts, the said “12. That the so loaned John Tax Fund of the Special were credited to gan, with ac- School, moneys merged No. and became District law.” sources provided by to said fund from the cruing that is stated for the it In filed counsel the brief the defense.” was ‘never was' indebted’ “the issue of general it was was loaned that that the admitted “It. District, identity to the credit deposited moneys acruing with the merged loaned was to be levied fund authorized special from the the District Constitution.” XII of the 10, Article under Section *11 196 concession, 2 stipulation pleas

In and and view of such eliminated; this as waived or and regarded if good, may the of trial court opinion accord with written the appears to in the rendering judgment. “amplified” common counts pleas

Two lengthy School improper unauthorized conduct of the averring Board with reference to the administration of funds within demurrer; official were eliminated on and functions, their to show such principles pleas herein stated are sufficient to the action or were covered defense constituted.no of the plea general issue. court claims and part

The excluded a rendered for a of them on the that the judgment part theory board no had amounts in borrow some view of authority annual anticipated and actual revenues of the Special Tax School and the outstanding District indebtedness the district.

A writ of error each party, was taken plaintiff and de- fendant. in

Where is borrowed faith money good by a govern- mental unit and the used for an money authorized pur- pose, unit be liable on may principles equity and justice, as on an implied assumpsit, had and re- ceived, such not provided borrowing is expressly forbidden law. See 44 by applicable C. and cited. authorities J. In an a action against governmental unit for money had received, and a written order or promise pay borrowed may be adduced in evidence show amount received use in a lawful even purpose an though action might not be maintained on the written order or promise to pay.

The board of instruction acts for the in financial matters. Board of Districts Pub. Knight Co., Inst. Pinellas Co. v. & Wall 100 Fla. 644; Dixon, al.,

So. et v. 99 Fla. So. Juvenal In view of the statutory duty authority to maintain appropriate schools and facilities lo- every cality county, including tax “special schools” in districts,” tax school “special as the direction schodls, special control the board tax it over seems clear *12 authority that the board had to borrow for money the au- thorized school and if purposes; good the board in faith re- money ceived it and used for the authorized purposes of tax “special “special schools” in tax school districts” in the county, an action brought be maintained duly may against received, (cid:127)the board for and money had recover judgment to for amounts with so used interest. The law appropriate contemplates that and in faith bor- money lawfully good rowed used proper and by for authorized school dis- officers purposes' trict shall from funds such dis- accruing to tricts, payment such to be made in are ways authorized detrimental to school operations, though least current cur- expenditures rent be in measure in order a curtailed to make reasonable payments money for borrowed and used in pre- vious years enable schools' to continue operation. XII, Constitution,

Section Article for the provides of issue bonds by Special under stated Districts restrictions “for the exclusive use free of schools public district”; within tax but special such school there is no a express special tax district authority school nor there money; any express prohibition against borrow district; a implied authority borrowing money such The tax special is sufficient. revenues of school to borrow XII, 10, Article from ad valorem under are districts Section for several after and are not months collected taxes which, ex- emergency even if or urgent year begins, schools, are not penses required operation proper make essential of may required borrowing 'of the In operation schools. fiscal sit- recognition this uation and of the necessity operating during schools conditions, the school the stated fiscal year notwithstanding statutes confer in- county such in the mainte- general authority struction duties nance of both district schools as afford at implied borrow clearly, authority appro- least amounts when priate imperatively necessary required to the schools under the See Sec. operation statutes. C. G. L. But the law (570) (576) contemplates1ef- ficient and economical the chosen officials. management by expenses annual are to exceed the annual re- Where allowed whether from ceipts, negligence, inefficiency management cause, accumulate, or other tax- debts necessarily unless assert their in the protect rights selection of of- payers corrective The law not legal proceedings. ficers' or does that, when chosen' officials contemplate duly extravagantly *13 funds are authorized spend public they or to negligently expend repay, borrow and the lenders shall properly officials, the of chosen suffer a loss because of deficit when in participate such lenders not in such needless way do not lend the expenditures or do with record or money the intended or actual notice of im- reasonably informing of it. use proper in 566 (458)

If Section principle intendment or by to the funds of applicable C. G. L. is limitation the express as an au- impose Districts so estimated required of the amount to borrow thority 80% next en- common schools maintain necessary to the section preserve year, provisos suing scholastic debts, require and do not debts outstanding integrity

199 in to be full the board “before paid by being permitted to cent, borrow on the estimate eighty per next en- The Section not suing year.” certainly prohibit does are borrowing previous before debts (cid:127)full, 1927; see later Act, Chapter Acts therefore the implied power to incur indebtedness for proper pur- with the board of poses approval public in- L., struction 717 ( 576) as Section recognized by C. G. statute, specifically by not limited efficient and faith- though ful administration of the and duties conferred authority by statute that should demands be borrowed only when and to the that imperatively extent it is necessary conduct the required as the statutes. schools See Sec. 711 (569), (570), 561 (454), (576), C. G. L.

When bonds are not issued for purpose that as' author- law, ized by expenses for proper buildings, repairs, per- furniture, manent equipment, insurance premiums per- haps other may spread items over a time period of that has proper relation to the duration of the for which object the expense was incurred the school district.

It be may necessary expenses year incurred in a given will exceed the reasonably contemplated revenues of the district, but this should be adjusted budgets following to avoid an debt. State Board increasing ex rel. Pub. Inst. Bervaldi, al., Monroe Co. v. et Fla. So. Inefficient management extravagant expenditures may not affect the obligation pay money received used by proper officials for authorized purposes', excessive though expenditures be enjoined, liability or individual en- may forced.

In this case there was no limitation specific upon proper *14 expenditures for authorized and necessary district school there purposes, and it that was no such appears record 200 of anticipated

made receipts and expenditures as the law contemplates; and those whose money was used author- ized district school purposes' were not reasonably put on notice that may there be excessive or unnecessary expendi- tures for authorized purposes so as make the lenders par- ticipants in such improper expenditures', which might ex- clude a legal to recover right for money so used.

It that appears money was borrowed and used for dis- trict school purposes before the 6828, enactment of Chapter 1915, Acts of 566 (458) Section C. G. L. If such statute is applicable to Tax Special Districts, School the provisos therein appear negative an express limitation affecting the repayment of received and used for Special Tax School District purposes. L.; See also Sec. 577 C. G. 13297, Chapter Acts of 1927. Reeves,

In 612, 922, Munroe v. 71 Fla. 71 So. and in State Greer, 249, v. 88 739, Fla. 102 So. the statutes authorized houses, the erection of school but the statutory authority to issue municipal bonds for purpose held was to be invalid. Lakeland, See also Brown v. 61 508, Fla. So.

In Nuveen v. City Quincy, 510, 153, Fla. So. the action was assumpsit on common counts to recover money received and used in erecting school The buildings. statute of limitations barred the action.

In Franklin, Leonard v. 402, Fla. 93 So. county school board had no authority issue in proposed terest-bearing warrants, time payable from funds, the proceeds used in aiding the building and equipment of school buildings Dis tricts in the county. The Constitution provided for Special Tax School District bonds such purpose. Sec. Art. XII, See Moffett, also Barrow v. 71; 95 Fla. 116 So.

201 Board, 1152, 357; State v. Fla. 125 Inst. 98 So. Bd. Pub. 824, Co., 326, Furn. v. Union School Fla. 129 So. hav reference ing school funds. county 153, 250, In Board v. 109 Fla. Kennedy, So. board of was

county public instruction authorized to not interest on a pay contract warrant for amount due for before rendered for transporting pupils judgment amount due. Board, 341,

In v. 101 Fla. Savage Chapter So. and no interpreted; question Acts was was presented prior power as to limitations board of instruction to borrow Districts. purposes On as made in this it appears the record case that the to recover plaintiff judgment is entitled amounts shown and used for school purposes to have been loaned District. Special Tax School proceedings.

Reversed for appropriate J., concur. Ellis, Brown, Terrell, Davis, Buford J. D. C. ex rel. R. Sheriff, State, Coleman, v. Race. J. So. B.

Division 19, 1935. Opinion January Filed