73 Fla. 363 | Fla. | 1917
The town of Blountstown, a municipal corporation, sought by mandamus to compel the County Commissioners of Calhoun County to pay to it one-half of the taxes for road and bridge purposes, amounting to $792.60, levied upon and collected from property located in the town of Blountstown from the year 1904 to 1913, both inclusive. Petitioners allege.that demand has been made on the County Commissioners to issue a warrant to it upon the Road and Bridge Fund of the county for said sum.of $792.60, but the demand has been refused. That there is in the Road and Bridge Fund the sum of twelve thousand and thirty-five dollars and twenty-seven cénits, but does not state what part, if any, of the said sum now in said fund was derived from taxes levied during the years 1904 to 1913.
The respondents moved to quash the alternative writ on the grounds: (1) That the writ was vague, indefinite, uncertain and insufficient; (2) that relator was in laches; (3) that the writ required respondents to do an unlawful act; (4) that the claim was barred by statute of limitations. The Circuit Judge denied the motion and relators filed their answer, which was demurred to, and demurrer sustained. They then filed an amended answer setting up the same defenses, and added one of waiver by the town, but as plaintiffs in error admit that they failed to prove this, it need not be considered.
The respondents admit that they collected $1,583.20 as Road and Bridge tax on property located within the corporate limits of Blountstown during- the years 1904 to 1913 inclusive. They allege that no demand was
On motion of relators, the court struck all of paragraphs 3 to 25 inclusive, of the amended answer on the
There is no question but that the County Commissioners of Calhoun County have spent more than half of the amount of money which should have been turned over to the town of Blountstown; but having done so, have they the right to take the money raised by taxation on property in the whole county, to pay this indebtedness to the town? All the money in the Road and Bridge Fund, except one half of that collected for taxes on property situated within the town of Blountstown, must be expended for the purposes for which it was levied, and for no other. The statute which provides for this special tax for roads and bridges, after authorizing the levy, provides: “And the money arising therefrom shall be paid into the county treasury as a special fund to be expended under the direction of the County Commissioners solely for the purpose of maintaining, working, repairing and. keeping in good condition the public roads, bridg-es and river crossings of the county, and .purchasing- suitable tools, implements and materials, teams, wagons, camp outfits and stockades for the use* and safe keeping of the convict force as may be found necessary in the proper carrying out of this work, and for the employment of such additional labor as may be deemed necessary: Provided, however, That one-half of the amount realized for said special tax 011 property in incorporated cities and towns shall be turned over to the municipal authorities of. said cities and towns to be used in the repairing-, working and improving
The statute further provides that before levying this special tax “sixty days’ notice must be given in one or two newspapers published in the county of the intention to make the levy and that if a majority of the registered voters by petition oppose the levy, it shall not be made.” Sec. 850 Gen. Stats, of 1906, Florida Compiled Laws, 1914. By this publication the people of the county are notified that all the money raised by the special tax levy, except one-half of what is collected from property within the corporate limits of cities and towns, will be expended solely for roads', bridges and other purposes mentioned in the statute, in that part of the county lying Í'outside the cities and towns. The provision of the statute, that “if a majority of the registered voters by petition oppose the levy it shall .not be made,” is in the nature of a referendum vote, upon the proposed lev}', and if a majority of the registered voters of the copnty do not object to it, it is equivalent to an affirmative vote upon the proposition submitted; but their silence cannot be construed to mean that they gave assent to the application of a considerable part of the money raised by taxation upon the properties without the ‘corporate limits of cities and towns, for a purpose foreign to the purposes enumerated in the statute. /. The County Commissioners, therefore, have no authority to use any of the money raised by the levy of 1914 and 1915 for any purpose not provided for- in the statute. Their obligation to pay to the cities and towns one-half of all the money collected by taxes on property situated within their corporate limits, is no greater than their obligation to expend all the residue on roads, bridges, etc., in that part of the county lying outside such corporate limits. It
It is not in the power of the County Commissioners to turn over to the town of Blountstown any part of the Special Road and' Bridge tax collected for the years 1914 and 1915, except one-half of that collected for-taxes on property situated within the corporate limits of the town. All the rest of the money in that fund must be expended on that part of the county lying beyond the corporate limits of cities and towns, for the purposes provided for in the statute.
It is clear that the money in the Special Road and Bridge Fund derived from taxes for the years 1914 and 1915, is not available for the payment to the town of Blountstown for its proportion of the taxes levied and collected for the years from 1904 to 1913 inclusive.
Another question raised by respondents, which possesses merit, is that the relator is in laches. It is a well settled rule that an application for mandamus “must be made in proper time: i. e. it must not be delayed too long.” Short on Mandamus, 227. “The court will refuse mandamus where there has been unreasonable delay in applying for it.” Ibid. 250.
The rule of “Vigilcmtibus, et non dormientibus jura subveniunt,” applies to mandamus,. It was the duty of the municipal authorities of Blountstown upon the failure of tibe County Commissioners to turn over to them its
In the case of Regina v. Trustees of Rochdale & Halifax Turnpike Road, 12 Ad. & El. (N. S.) 447, an application for mandamus was deniéd, and Mr. Justice Coleridge said: “We have-been asked what number of years will bar an application of this kind. It is not necessary to fix any number. An apparent laches, unexplained, is the bar. It might take effect in a year.”
In the case of Rex v. Justices of Lancashire, 12 East. 366, Lord Chief Justice Ellenborotjgh, in passing on an application for mandamus in connection with the expenditure of money for road repairing-, said: “This is an application to the discretion of the Court, to shift a bur-then from these parties, on whom it has been innocently, perhaps, but certainly negligently, fixed, and to put it upon others who are also innocent of the charge. And though applications of this sort have been entertained; yet that must be understood of such as were recently made after the occasions which gave rise to them. But. what perverse justice it would be to grant such an-application after an interval of eight years, when a large proportion of the inhabitants must have been changed. Suppose an action of assumpsit could have been brought in such a case for the contributory shares of the other inhabitants, the statute of limitations would have run upon it; but if this application be granted, the money must be paid
In the case of Ex parte Scott, 8 Dowl. Pr. Cas. 328, S. C. 4 Jur. 579, mandamus was prayed to the Churchwardens of the Parish of Lambeth, to pay Mr. Scott the arrears of his salary to which he was entitled by a certain local Act, for his services as Clergyman, which he had performed from 1833 to 1838. The application was to compel the Churchwardens to pay the salary due, or to make a rate for that purpose. The writ was refused, and Mr. Justice Coleridgé said: “As to Mr. Scott, has there not been some laches ? Here he is in the year 1840 seeking to compel the inhabitants of the Parish to pay what they ought to have paid in the year 1837.” In these cases it was sought to have a rate or tax'levied to pay obligations which should have been paid years before.
In the case of City of Sanford v. Orange County, 54 Fla. 577, 45 South. Rep. 479, a bill was filed in 1903 for an accounting and payment to the City of Sanford of one half the amount realized from the road and bridge taxes for the years 1893 to 1902 inclusive, under a provision of the Sanford Charter identical with the provisions of Section 850 General Statutes -(j>f 1906 unjler consideration. In that case this court said: “The city is in laches in asking for it, and if it has been used for road purposes, and is consequently not in fund, the County Commissioners cannot be required at this late day to account for' it to an agency to be used for roads and streets.” It is true, that the court also said: “If there were any funds in the hands of the county, and the -city had a clear'right to their use, the proper remedy is mandamus, if duly applied for;” but there is a strong implication from the context, that at such,a late day—ten years
It follows from the foregoing that the judgment ordering the peremptory writ must be reversed, and it is so ordered.
Taylor, Shackleford, Whitfield and Ellis, JJ., concur.