Palbicke v. Lee

Buford, J. This case and other companion cases involve identical questions. The basis of the alleged right to have the relief prayed is stated in the opinion prepared by Mr. Justice Davis. The appeal is from an order granting defendant’s motion to dismiss the bill of complaint. The bill of complaint sought to obtain decree of declaratory judgment, the prayer for same being as follows: *766 “Wherefore, Your orator being without remedy save in a Court of Equity where such matters are cognizable, prays this Court by its Declaratory judgment that, it has been proved to the Clerk of the Circuit Court of Santa Rosa County in the State of Florida, that the lands described in this Bill of Complaint have been sold for unpaid taxes and the description of said land was void and that a certificate of such fact was forwarded by the Clerk aforesaid to the Comptroller of the State of Florida and a memorandum was entered upon the list of land sold for taxes kept in the Clerk’s office of such fact.” The complainant based his right to refund upon the provisions of Section 783 R. G. S., 1009 C. G. L. In construing this section of the statutes in the case of Otto Harleee, et al., 119 Fla. 266, 161 Sou. 402, we held the pertinent provisions thereof to be unconstitutional, saying: “Under the statute we are now considering it is attempted to clothe the Clerk of the Circuit Court with the power to determine whether or not a tax certificate is void by reason of the insufficiency of the description of the lands as. contained in such certificate. This determination involves the right, of the certificate holder to interest on his investment. It involves the right of the county to hold the money which the certificate holder has paid for the certificate and to use that money for lawful county purposes. There can be no doubt that the exercise of such power is a.judicial function and may not be legislatively delegated to, nor may it be exercised by an administrative officer. See People, ex rel. Kern, v. Chase, 165 Ill. 527, 46 N. E. 454, 36 L. R. A. 105; State, ex rel. Blaisdell, 22 N. E. Dak. 86, 132 N. W. 769; 6 R. C. L. 172, et seq. There is no other statute except that above referred to which purports to authorize the Comptroller to refund pub- *767 lie money in cases of this kind. It is well settled that a public official charged with the custody and control of public funds may only pay out the same in the manner prescribed by statute where the statute directs the manner and method of such payment. See Thomas v. Carlton, 106 Fla. 648. 143 Sou. 780. If we should hold in accordance with appellant’s contention we would in effect hold that absent any legislative authority, one may procure a Declaratory Judgment in equity and pursuant thereto coerce the Comptroller to refund moneys which have theretofore been paid in by him to the State Treasury pursuant to law. This is the exercise of a legislative and not a judicial power. Section 116 R. G. S., 146 C. G. L., provides in part: “And no warrant shall ever be issued until the same has been authorized by Act or Resolution of the Legislature.” It, therefore, follows that as there is no valid statute requiring the Comptroller to draw his warrant for the amount of the refund claimed, the relief is not available. Therefore, the order appealed from should be affirmed. It is so ordered. Affirmed. Whitfield, C. J., and Ellis and Brown, J. J., concur. Terrell and Davis, J. J., dissent.