State Ex Rel. Urquhart v. Johnson

Buford, C.J. This ease is before us on motion to quash alternative writ of mandamus directed to the Respondents, commanding them: *626 “As and constituting the Board of Bond Trustees of Ocean Shore Improvement District, a Special Taxing District in Flagler and Volusia Counties, Florida, and existing under the laws of the State o'f Florida, that you forthwith convene as such Board of Bond Trustees and make and submit to the Boards of County Commissioners of Flagler and Volusia Counties, Florida, instanter, a careful estimate of the amount of money necessary to be raised by taxation against the taxable property in said district for the year 1932 to pay the principal and interest on the certificates of indebtedness of said District in the amount as set forth in paragraph 3 of this writ, and that you do forthwith upon the making and preparing of said estimate submit the same to the Boards of County Commissioners of Flagler and Volusia Counties, Florida, for the making of a tax levy thereon and in accordance therewith, and that you, the said Ed Johnson, as Chairman of said Board of Bond Trustees do forthwith sign such notices, resolutions and certificates as are necessary and required to be given or presented in order' to carry into effect the mandatory provisions of this writ; ’ ’ The 10th, 11th and 12th grounds of the motion to quash are based upon the failure of the allegations of the alternative writ to show that the notices required by section 15 of chapter 14776, Laws of Florida, Acts of 1931, to be given by the Comptroller of the State of Florida to the County Commissioners of Volusia County or to the officials charged with the administration of the said Ocean Shore Improvement District in Flagler County, of the estimated amount of funds in hands of the Board of Administration of Ocean Shore Improvement District available to the application to the interest and principal and/or the sinking fund requirement of the said Ocean Shore Improvement District for the year 1932 have been given. In State ex rel. Gillespie v. Johnson et al., in which *627 opinion was filed October 17, 1931, reported 137 Sou. 126, we held: “It therefore appears that there remains a field of operation for the trustees as section 4 provides certain duties to be performed by the trustees and section 15 provides that the comptroller shall give notice to the Board of County Commissioners of Volusia County, Fla., and/or the officials charged with the administration of said Ocean Shore Improvement District in Flagler County, Fla., of the estimated amount available for application to interest, and principal and/or sinking fund requirements. When this notice has been given to the trustees the respondents here, the trustees may thereupon determine under the provisions of the former legislative acts the amount of the tax required to be levied to meet the demands of the district and certify the same to the board of county commissioners of each of said counties.” The point raised by the demurrer in this regard is well taken. That the Comptroller shall give notice to the Board of County Commissioners of Volusia County and/or the officials charged with the administration of said Ocean Shore Improvement District in Flagler County of the estimated amount available for application to interest and principal and/or sinking fund requirements is a statutory prerequisite to the vesting of authority and imposing the duty upon the Board of Bond Trustees to determine the tax required to be levied to meet the demands of the district and to certify the same to the Board of County Commissioners. It is not enough for the writ to allege that all things required to be done and all duties required to be performed to entitle the relators to the relief prayed have been done and performed. The duties of the Board of Trustees in this respect are statutory and they are not required under the statute to perform that duty here *628 sought to be required of them until the Comptroller, who is not a party to this proceeding, shall have filed the certificate required by the statute, which certificate constitutes a basis from which the Trustees must work to determine what may be the necessary balance to be raised by taxation to meet the requirements of the district in regard to bond debt and interest service. The motion to quash should be overruled as to grounds from 1 to 9, inclusive, and the motion to quash should be granted on grounds 10, 11 and 12, with.leave to the Relators to amend the writ within ten days from the filing of this order. It is so ordered. Alternative writ quashed, with leave to amend. Terrell and Brown, J.J., co'neur. Whitfield, J., concurs specially. Davis, J., dissents.