State Ex Rel. Gillespie v. Vickers

Per Curiam. Alternative writ of mandamus was issued by this Court directed to the Board of County Commissioners, the Tax Assessor, the Tax Collector and the Clerk of the Board of County Commissioners of Charlotte County, to respectively levy, assess and collect certain taxes with which to pay certain bonds issued under authority of law by the proper officials of Charlotte County, together with certain interest coupons. The matter is now before us on motion to quash the alternative writ and also on motion of the Relators to issue peremptory writ, both of which will now be considered. „ The bonds were issued under the provisions of Chapter 10409, Acts of 1925. Section 3 of that Act provides: “The Board of County Commissioners shall levy annually all such special taxes on the taxable property within the limits of said County as may be necessary to pay the interest on said bonds and provide a sinking fund for' the payment thereof, and such sinking fund shall be promptly invested in bonds hereby authorized to be issued or other County or Municipal bonds; but the Board of County Commissioners may, if they shall deem it advisable, post *159 pone the levy of taxes for the creation of a sinking fund until the year 1926.” The authority of the Board of County Commissioners to levy a tax to provide for the payment of the bonds and interest is contained in this Section of the Act and there is no provision therein which will authorize the courts to command the County Commissioners to levy a tax except such as may be required to pay interest and an annual tax to create a sinking fund. This does not mean that when the County authorities have failed in past years to levy and collect a sufficient tax to create a sinking fund for the payment on principal of the bonds that the court may by mandamus require the authorities to levy and collect a tax in one year to pay the principal of bonds which have become in default by reason of the non-performance of the duty devolved upon such county authorities. Under this Act the County authorities may be required to annually levy and assess, if possible, collect, a tax which, if collected, would be sufficient to create a sinking fund which would be ample to retire the bonds when they become due. This does not mean that the bondholder has no recourse. He has his recourse in a suit at law to reduce his bonds to judgment. In State ex rel. Dos Amigos, Inc. v. Lehman, et al., 100 Fla. 1313, 131 Sou. 533, this Court said: “The authorities generally hold that a court may, by virtue of its broad equity powers, spread a tax levy over a period of years when levied to satisfy a judgment obtained against a governmental entity or when levied under an Act allowing some range of discretion in the taxing power. City of Cleveland, Tennessee, v. U. S., 166 Fed. R. 677; Deere v. Board of County Commissioners of Rio Grande Co., 33 Fed. R. 823; Deuel County, Nebraska v. *160 First National Bank, 86 Fed. R. 264; Phelps v. Lodge, 60 Kan. 122, 55 Pac. R. 840; State v. School Dist. No. 7, 22 Neb. 700, 36 N. W. R. 278; City of Little Rock v. United States, 103 Fed. R. 418; Graham v. Quinlan, 207 Fed. R. 268; State v. Wier, 33 Neb. 35, 49 N. W. R. 785; Village of Oshkosh v. Nebraska, 20 Fed. R. (2nd Ed.) 621; People ex rel. Akin v. Board of Supervisors of Adams Co., 185 Ill. 288, 56 N. E. R. 1044.” The alternative writ commands the Tax Collector to proceed to collect the tax contemplated in the writ. ■ There is no allegation or showing that the Tax Collector has refused to collect the tax or that any duty rests upon him at this time to collect such tax. Therefore, this command in the alternative writ is prematurely made. In consideration of the foregoing matters, it is ordered that unless the Relator shall within ten days move to amend his alternative writ so' as to eliminate the requiring of the levy of the tax to pay the matured and unpaid bonds and so as to eliminate the command to the Tax Collector to proceed to collect the tax and so amend as to eliminate the Tax Collector as a party to this suit, the alternative writ will be quashed. If the alternative writ be so amended the Respondents shall have five days thereafter to plead further as they shall be advised. It is so ordered. Whitfield, TeRRell and Buford, J. J., concur. Davis, C. J., concurs specially. Ellis and BrowN, J. J., dissent.