*1 103 Robert E. Error, vs. Moore, The State Plaintiff in Error.
Florida, Defendant 187. So. Division A. January 25,
Decision filed 1932. rehearing Petition for March denied 1932. Joseph Nichols, Error; W. for Plaintiff in Cary Attorney D. Landis, General, Boy Campbell, Assistant, for the State.
Per Curiam. —This having cause been sub heretofore mitted to transcript the Court of the record of judgment herein, argument and briefs and of counsel for the respective parties, having and the record been inspected, seen and and the Court now advised of judgment given to be premises, in the it seems to Court that there is judgment; is, no error the said therefore, considered, adjudged ordered and Court that judgment be, of the Circuit Court hereby and the same is affirmed.
Buford, C.J., J.J., and Brown, Ellis concur. ex relatione J. W. Gillespie, L. The State of Florida F Rodgers G. Relators, D. Martin, James Ben vs. Thursby, Chairman, al., et and Ed. Chair- Johnson, man, Respondents. al., et
En Banc.
Opinion January 25, filed 1932. rehearing Petition for denied April *2 <& Lasseter, Attorneys Vacelle Mitchell H. A. Relators; Gardiner, Attorney
W. J. Thursby, Ben D. et al. H. Henderson, Attorney A. Johnson) for Ed al. et juris- is a Commissioner.—This case Davis, appears legislature diction wherein it of 1931 law, 1306, (Chapter enacted a House Bill No. Laws Florida, 1931, p. 558) abolishing the Board Bond Improvement District, special Trustees of Ocean Shore taxing territory comprising district certain and Volusia Counties. Prior to the enactment of this Board, on or before statute, duty of the it was the said to the Boards July year, make' submit first each to' counties, an estimate of said by taxa- be raised necessary to money amount of pay district, to property in said against the tion taxable pay- sinking fund for the create a the interest this District; principal of bonds of ment in a during (June) term, mandamus Court, present Board against proceeding, brought relators Act, provisions Trustees, of Bond held that the insofar .abolish said Board of sought as it *3 per- Trustees, were and ordered a unconstitutional emptory requiring writ of mandamus the said Board money necessary to be make and an estimate submit of by against the in raised taxable said taxation property pay obligations district to relators of said district due convened, bonds, as holders of and said Board its that prepared made and such estimate and submitted County Commissioners; same to the of that said Boards County County the Board of of Commissioners Volusia against has levied twelve on the mills dollar the taxable county, property of district said and said levy .County whatever, has levied no tax and that County made in to raise the so Volusia not sufficient required amount to be raised in said for district year 1931. response of is-
In to the alternative writ mandamus herein, sued and was on which served October respondents County officials, herein, the Volusia who are they say return the writ that the made their wherein of County, Board Commissioners of said on the '1931, August, A. D. a tax twelve mills 28th levied property dollar year 1931, on the on all in said lying district, county, pur- within said and pose paying creating sinking interest and fund for district; the retirement no of the bonded debt of the that estimate had been furnished or delivered to the said by Board Commissioners the said Board of levy made, Trustees before the said but an that estimate was made and delivered to the said Board of by Commissioners the Board of Administration Florida, of the State of under and virtue the said passed Aet of which had upon not at that time been Court; that the said of twelve mills was computed based an from estimate revenues district, computed for said which estimate was from an estimate made and delivered to the said County, by said the Board Adminis- Florida, tration of State of from the records of the several bond issues of said district on file o'f record the officeof Board of County Commission- ers; that estimate anticipated shows revenues for district, stating redemption, the said for tax amounts for gas transportation, tax and auto and the amount paid Flagler County upon due to be the said bonded debt; appears figures that it now said es- gas transportation timate tax and tax allocated to the district than been, were less have should property the valuation of the taxable the district was *4 underestimated, by and that reason thereof additional by sums will be received said from district these sources of revenue; moneys that the that will be received reason underestimating, together of the said with the amount reserved for contingencies, will be more than provide resulting by sufficient to for loss incorrect com- putation bonds, of interest due on one series of and the failure past to include certain due; interest that the said showing estimate does not contain an item the antici- pated moneys tax to be from received the of a tax property on lying Flagler said district County for n thereason that at the time said estimate was made and the said tax levied, twelve mills Board County County, of Volusia the Board of Commissioners County County had not levied Commissioners on any year 1931; that Flagler County tax for 1931, authorized August, and within the time 28th of required by Chapter 15660, Laws of Florida County County of Volusia Board County, including levied all taxes for Volusia said twelve property tax all Vo- mills of said district within County lusia County, and that the Tax Assessor of said prepared three tax rolls County, for said which were completed and turned over Com- meeting at missioners on such board held first Monday in October, A. D. meeting at which said part Commissioners examined in said roll, tax time, complete but because insufficient did the examination 20th, until they Oct. when en- dorsed and on rolls, certified said three that had correct; them and that im- examined were that mediately thereafter, Tax the said Assessor issued and annexed to one of rolls, pro- his warrant as vided law immediately and did copy deliver one said tax roll to copy the Clerk of the Court, one to the Tax Collector of Volusia copy one Comptroller State; that the Tax Collector of said county had, up including day to and 5th Novem- ber, D. 1931, A. 285 taxpayers owning collected from property in said district, $4,499.32, the sum and that moneys daily were property received from owning owners property district; in the the total property value of the taxable in the district in Volusia County more property than one-fourth the taxable County, pages and that 141 of the tax roll for required it; notwithstanding were describe willingness of the said Board of Commis- *5 sioners for purpose pay- an additional tax sinking ing taking the interest care of the for fund district, they indebtedness of said know the bonded procedure whereby authority law or additional no such may procedure levied, authority be if such or whereby known, is was there no fund available changed, sup- roll could or a be rewritten al- plemental prepared. The return other roll contained legations necessary to refer which are to here. Flagler County
The have moved the Court officials quash and have a re- the alternative writ also filed that no turn wherein it admitted tax was levied Board of of that on the Commissioners property lying in said district in that for the details) (omitting proportionate reason rate “that portion said dis- contribution that Flagler County is 1.76 per trict that lies cent of required total that to meet that contribution will portion Improvement Flagler of said District that lies County”, millage and that the that there was no reason levied for said they upon estimates, hon- district was that based gas more tax distributed would be there estly believed County for of said than the the use district County’s by Flagler por- owing per cent 1.76 redemption said bonds payment and tion necessity levying no would be for that there interest, and purpose. Otherwise district millage necessary levies. willingly made would have per- Court have moved the to issue The relators not- the alternative writ emptory writ, return to forth sets grounds that said return upon the withstanding, why should not peremptory writ legal no reason legal right on the a clear issue, and because show re- duties performance part relators quired. moving peremptory respondents, in
After answer pleaded all well aver- relator admits mandamus, writ of
109 N. respondents’ Apalachicola vs. mehts of answer. State Co., 394, R. 81 Fla. So. light
In in the case of the State of the decision rel., Gillespie, Rodgers L. F. and James Florida ex J. W. Johnson, Chairman, Upson, L. O. J. Martin, C. Ed. vs. Courtney, as and Pierce, Bingham E. M. and W. H. C. Trustees, etc., constituting decided the Board 1931, duty it Oct. was the of the levy to and Volusia Counties district, tax deter property all year mined its of bond Trustees for the board duty and and was the of the Tax Assessors collectors respectively, counties, to make the assessments and of such Commis collections taxes unless the any sioners and Tax Assessor ceased to have relation having placed the tax reason of the tax rolls been collector, in the hands of of the Circuit the tax the clerk Comptroller, prior Court the issuance and the State duty, of the alternative writ mandamus herein. This duty, discharged by if it was never the said officials, and it is now insisted the brief filed on behalf County officials, of the Volusia its commissioners compelled levy, cannot to assess tax assessor collect, sup nor or the tax collector to an additional plemental making the and tax because the time for expired have assessment has and the tax rolls been de portion livered, according law, substantial the taxes The have been collected. record does not -dis any part close wilful dereliction on machinery officials The involved. assessment gear by of the tax was thrown out of collection right legislation put matters were until down decision in the mandamus court handed its this against Trustees, on proceeding the said Board of Bond only days 17th, 1931, which was three before October Commissioners of Yolusia certified *7 of to the correctness the tax rolls. refer
Relators us to Board Commissioners vs. Hand ley, 90, 14, 59 So. which pro Fla. was a mandamus ceeding compel to the Board of Commissioners Lafayette County provide to for and call an election county intoxicating said to decide whether the sale of liquors prohibited grounds should he therein. ofOne the by up respondents set the defense to alternative as force, case, writ in that that under the law then was petition presented asking was for the election and the sixty days election had to be held within from the time presenting application, and that inasmuch as thirty-five days elapsed application had since the filed, possible days’ give thirty it would not be to the required by notice law to hold the election within the sixty days period constitutional from the time of presenting application. Our attention is directed to following language in disposing of the court of this say it contention: “Suffice responsible affairs, for such themselves are a condition of they permitted will not be to avail themselves aas illegal act”, suggestion, defense of their own with the least, apply should prin inference at that we the stated ciple to this case. We cannot do this. The Yolusia responsible officials were not for the conditions passage that arose reason of the of House Bill No. 1306, they guilty any illegal nor were act. It was not up disregard provisions to them Bill of House No. Indeed, duty 1306, Acts it was their obey in proper proceedings provisions statute until those relating the statute passed upon by to their duties were they Courts, presumptively were valid. State ex Equalizers, rel. vs. State Board of 91 Fla. 94 So. 681 ; 30 A. L. R. and authorities therein cited. Neither the said Commissioners nor the Tax As- parties proceedings sessor nor Tax Collector were to the they against Trustees, nor ad- the Board were Trustees, until vised the estimate made 1st, 24th after October and before November open for supposed date when the tax books were to be payment of taxes. statute, Under upon our devolved assessor duty turn Monday in October, over on the first copies and two roll, the assessment to the duty having Commissioners, was, whose after ex- amined them, and corrected to endorse a certi- thereon ficate had so them were examined and that correct, then further devolved the tax *8 copy comptroller, copy assessor to deliver one the one to to the tax original collector and to the the file in office the Court, of Clerk of the Circuit and the statute ex- pressly provides that “the Commissioners shall any not power change have the assessment after the copies comp- have tax and been delivered the collector ’’ troller and the filed with the clerk of the court. (Secs. 934, Compiled 936, Florida, 1927). Gen. Laws of performed These duties were before the alternative writ case, issued this and the of before said Board Trustees prepared and submitted to the said Board of County Commissioners, necessary of money the amount to be against property raised taxation the taxable year of district for 1931.
Under Chapter 15660, Florida, 1931, p. Laws Acts 1171, authority given was making to defer the of tax levies for State, County, District and purposes school for year 1931 permanent until enactment of a Tax Levy Bill for beginning July 1931, the biennium 1, not Monday extending beyond in September, the first a bill tax was enacted and a Such became law on July 27, 1931, (Chapter 15786, Florida, Laws of Acts 1931, p. 139). It is not contended relators that the
County Commissioners and tax assessor Volusia performed not had their duties as called provisions House Bill in connec- No. taken may tion with related statutes. it And in this connection place Comp- out be that neither the state State troller or Clerk of the Circuit Court Volusia County, such, party as a to this cause. diligent pro been apparent relators have
It is say case, they tecting rights, and that their already books that “the mere fact have opened collection is no nor ex of taxes defense perform their clear respondents cuse for the failure following legal and cite the premises”, in the “A Hartwell, So. 899: 35 Fla. from Stieff vs. completed during the invalid because not assessment is not rule, pro a general year made. As which an is to naming the time when act statute vision is a of taxes and collection in, assessment done our limitation”, also direct direction, not a Compiled following Gen. from See. to the attention pay due “All shall be Florida, 1927: taxes Laws year, or as each day of November first on the able may into roll come as the assessment soon thereafter tax collector”. hands of the immediately following' Court, opinion In *9 ap- Hartwell, supra, vs. Stieff language from quoted the something in the must be “There following: the pears was intended as time named indicating that the statute it as such.” will construe courts the limitation, before a in language that the Conceding J. 1037. 46 C. See also Florida, Laws of 950, Compiled General Section begin- for the as the date the first showing November nothing than more taxes, collection ning the words, “as the follow it does a direction may roll come into the assessment soon thereafter as statute, collector”, in the as used the the tax hands of a It were not intended as limitation. admitted copy peremptory one of the the motion for a writ that Volnsia assessment roll was in the of the hands copy collector, Comptroller tax one in the hands and that the was on file with' the Clerk of the issued, Circuit Court the writ was before alternative question levying as to when the relation of the and assessing ceased, duty officers to the tax and the began is collector becomes immaterial. But argued on behalf of in relators that court this has said McConihe McMurray, 238, that, vs. “It is no Fla. objection awarding that the time for per- writ duty passed, only formance has in and it case performance” issue, default in that a mandamus can contrary and that a practically doctrine would abolish remedy by mandamus like case the one at bar. Under the doctrine stated ex State rel. vs. Board Equalizers, supra, the tax assessor and Board of County performed Commissioners of Volusia duty imposed upon levying assessing them in taxes year certainly 1931. This was the case until this court provisions held certain Bill House No. 1306 to be in conflict with they If Constitution. were under duty levy no and assess the tax relators seek to have levied assessed, they were not in default in per- formance of respect. After the decision of this court was filed on Oct. in the ease of Gillespie State ex rel. vs. Board of Bond Trustees Improvement Ocean Shore District, Board Commissioners could not a tax to be estimated the said Board of Trustees, nor the tax assessor they assess it, until were advised estimate, of such given this information was not to them until after the said Commissioners had on certified rolls that had examined them and that correct, were and the tax assessor had annexed his war- *10 and, presumably—inasmuch
rant thereto as he had im- mediately proper to delivered them the officials to whom they given. should have If assume that been Aveshould County Commissioners, the levying Board the after year 1931, pre- taxes in the line with their as by provisions scribed of a in statute which were con- flict constitution, Aviththe but had not been declared in- valid a court of competent jurisdiction, any had at power time authority the or over, change to do or add to what already done, had still we would be con- fronted this proposition case with the that the assess- ment passed rolls beyond had respond- the control the ents when the alternative writ was herein. issued There statutory is no authority for the tax or assessor the Board of County Commissioners the to recall tax rolls require Comptroller, to the State or or tax collector to anyone any purpose, them to surrender there is good why they possession reason should remain officials. There must be a those time for the cessation levying relation assessing of the officers to year, the tax of each and there can no be better time possession pass than when the to rolls other parties. made, completed, With assessments of the Board of certificate Commissioners affixed rolls, issued, to the tax warrant collector proper and the tax rolls officials delivered under law, authority them, who are without to surrender possible it would assessment lands Improvement changed, in the Ocean Shore District to be impossible and would be for the Board Com- peremptory and the tax to obey missioners assessor mandamus, issued, having if become writ of functus circumstances, right tax. Under the as officio appear—it not been peremptory has made to a writ jurisdiction that the writ of man- rule in this when, if issued, granted will never be cases damus
115 compliance with unavailing, or when to prove be would or be without effects, in would nugatory its be it would Davis, relator. to the fruitless results and beneficial 116 So. Crawford, 95 Fla. Atty. ex rel. vs. General 389, 38 So. McRae, 49 Fla. Kehoe vs. 41; ex rel. State Harrison, 91 Fla. 580; Lamb vs. 605; 6 Ann. Cas. vs. State al. Co. Commissioners 671; Pippin
108
et
So.
653;
363, 74 So.
Blountstown, 73 Fla.
ex rel. Town
Commissioners,vs.
Burr,
al., State
ex rel.
et
Road
State
also, 38
833;
329, 82
See
Fla.
So.
Co.,
Tavares & G. R.
78
The
¥e quash mandamus, the alternative writ the motion Flagler officials. The re- filed on behalf of the sponsibility making an estimate of the amount neces- sary upon sinking pay the interest and create a fund payment principal bonds issued and sold, placed Trustees, on the Board of Bond discharged when have respect, their the Boards of Commissioners of authority dis- to exercise Volusia are (cid:127)without Counties equal cretion as to whether not a sufficient or mandatory duty rests A estimate must he levied. excuse levy, them make the unless some lawful *12 inspection exists making for not the motion it. An reveals no quash such the alter- excuse. The motion to native writ is therefore denied. to a relators- are not entitled
It that our conclusion is Com- against the peremptory writ as of Volusia missioners, and tax collector tax assessor opinion be being of that it will not neces- sary go sufficiency into the return made by County Commissioners, alternative writ the Board of Flagler County, tax assessor collector of reason peremptory that a mandamus writ of will not be granted respondents required may unless the be to do all required that by the alternative writ. There must be a compliance strict and full requirements with writ, merely and not partial compliance a therewith. State ex rel. Gibbs, 55; Tampa vs. 13 Fla. Waterworks Co. vs. State rel., ex 230; 77 Fla. 82 So. State ex rel. vs. Call, 39 Fla. 22 266. So. peremptory writ
The motion for is denied. Per Curiam. —The record in having this case been con Court, foregoing opinion pre sidered and the pared Chapter 14553, under of 1929, adopted Acts by the opinion, Court as its it is considered and ordered that the peremptory Court motion writ be and the hereby same is denied. Buford, C.J., and Whitfield, Ellis, Terrell J.J.,
Davis, concur. J., participating.
Brown, Rehearing.
On —By petition rehearing relators con Per Curiam. holding tend of the Court opinion
117 all ruling it will stands broad; if that was too en- being able to of ever deprive relators probability in that levy, rights to a force their constitutional refuse to purposely Trustees can hereafter the Board of aas condition required by make the statute the estimate levy can a tax precedent levy, that before to the tax so opening mandamus, the time for obtained thereby elapsed, books for have collection taxes will in the defeating stated principles the writ under the original opinion. principles The appeared.
In default this ease no such applicable particularly original opinion are stated in the any opinion, as only case, and the to that kind of a to the character here, be limited case decided should Wright, v. Smitz case that was before the Court. Rep. Fla. Sou. *13 required per that officers settled is well
The rule public securi benefit of holders of duty for the form a neglects and defaults defeat by their own can ties seasonably for, applied relief when granting of ’rs La adhere. Comm of that rule we still 14; Fayette Hadley, Rep. County v. Fla. 59 Sou. Berkemeyer Gaines, Assessor, 100 Fla. rel. v. State ex Rep. 115. Sou. Rehearing denied.
Buford, C.J., Whitfield, Ellis, Terrell Davis, J.J., concur. Georgia Corporation, Ap Corporation, Eureka
The Liquidat as pellant, vs. Company, Trust The Guardian Biscayne Corporation, a Florida or of Company, Trust Ossining Company, New York Trustee, and as Trust Appellees. Trustee, as corporation, 198. 139 So. B.
Division January filed Opinion