Herbert v. Thursby , 112 Fla. 826 ( 1933 )

In a bill of complaint brought by a citizen tax payer of Volusia County, Florida, it is in effect alleged that the county commissioners of the county, in order to secure an armory for appropriate use in the county, propose to borrow from the authorities of the United States government $52,500.00 to be used in providing such armory;

"That the County of Volusia now owns and has owned for many years last past the following described property located in Volusia County, Florida, to-wit: The West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona, of record in the Public Records of Volusia County, Florida.

"That the said property is now vacant and unused property, but was until about seven years since used as and for an Armory site; that officers and members of Battery C, 265th Coast Artillery, Florida National Guard, are now attempting to have the City of Daytona Beach, a municipal corporation of the State of Florida, convey to Volusia County and/or to the United States of America a fraction or portion of the City Island for a site for the construction of said Armory. That the City Island is an island located in the Halifax River, a river that divides the said City of Daytona Beach, and is owned by the said City of Daytona Beach; that if the said portion or fraction of the said City Island is conveyed by the said City of Daytona Beach to the County of Volusia, then your Plaintiff believes and so alleges that the said County of Volusia will convey the same to the Federal Emergency Administration of Public Works and/or the United States of America for the purpose herein alleged; that the members of the City Commission of the said City of Daytona Beach are now favorably considering the request of the said officers and members of said Battery C, 265th Coast Artillery, Florida National Guard, to convey a fraction or portion of the said City Island either to the said County of Volusia or to the Federal Emergency Administration of Public Works and/or the United States of America for the purposes herein alleged; that the Board of County Commissioners of Volusia County, Florida, intended and will evidence said loan, if granted, by a note or indenture of indebtedness obligating Volusia County to repay said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars to the Federal Emergency Administration of Public Works and/or the United States of America with interest thereon at the rate of four per cent per annum until paid, or in lieu thereof deed to the Federal Emergency Administration of Public Works and/or the United States of America the said West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona, of record in the Public Records of Volusia County, Florida, or said fraction or portion of the said City Island as and for an armory site for the construction of said Armory by the said Federal Emergency Administration of Public Works and/or the United States of America. That if the said West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona, of record in the Public Records of Volusia County, Florida, and/or the said fraction or portion of the said City Island is conveyed to the Federal Emergency Administration of Public Works and/or the United States of America and an Armory constructed thereon in accordance with the terms and provisions of said application, then and in that event said Volusia County by and through its Board of County Commissioners will lease from the Federal Emergency Administration of Public Works and/or the United States of America such Armory and land upon which it is constructed as and for an Armory for the said Battery C, 265th Coast Artillery, Florida National Guard. That the said lease would have to be executed and the terms and provisions thereof be in accordance with the terms and provisions of the said National Industrial Recovery Act, and would provide for a rental to be paid for such Armory by the County of Volusia to the said Federal Emergency Administration of Public Works and/or the United States of America over a period of not more than thirty years. That the said rental for the said Armory would be paid in monthly or annual installments until said total sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars was paid when the said Federal Emergency Administration of Public Works and/or the United States of America would convey the said Armory and the land upon which it was constructed to the County of Volusia without any further payment of money or consideration. That the Board of County Commissioners of Volusia County, Florida, will either loan or borrow the said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars from the Federal Emergency Administration of Public Works and/or the United States of America and evidence said loan by the execution and delivery of note and/or other evidence of indebtedness, or in lieu thereof convey the said West Seventy-five (75) feet of Lot One (1), Block Nine (9), according to Hodgman's Map of Daytona of record in the Public Records of Volusia County, Florida, or the said fraction or portion of the said City Island to the Federal Emergency Administration of Public Works and/or the United States of America and then enter into an indenture of lease providing for the leasing of either of said pieces of property after the construction of the said Armory thereon and agreeing to pay therefor an annual rental over a period of years, the total rental to be the sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars, plus interest at the rate of four per cent per annum; that the action of the said Board of County Commissioners of Volusia County, Florida, as herein alleged is to be taken and had pursuant to the said National Industrial Recovery Act, and that the said Board of County Commissioners of Volusia County, Florida, will execute and deliver any and all necessary deeds and/or leases and/or indentures necessary and requisite to secure the said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars with which to construct the said Armory building, unless enjoined and restrained from so doing by this Court; that the said proposed acts of the Board of County Commissioners of Volusia County, Florida, whereby the said Board of County Commissioners of Volusia County, Florida, propose to obligate Volusia County to pay the said sum of Fifty-two Thousand Five Hundred ($52,500.00) Dollars by note or indenture of indebtedness and/or by leasing such Armory from the Federal Emergency Administration of Public Works and/or the United States of America, are without authority at law and would be void and unconstitutional."

An injunction was prayed for.

By motion to dismiss, the essential allegations of the bill of complaint are in effect admitted.

The court denied an injunction and dismissed the bill of complaint. An appeal was taken by the complainant.

Section 6, Article IX, of the Constitution as amended in 1930 is as follows:

"The Legislature shall have power to provide for issuing State bonds only for the purpose of repelling invasion or suppressing insurrection, and the Counties, Districts or Municipalities of the State of Florida shall have power to issue bonds only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such Counties, Districts, or Municipalities shall participate, to be held in the manner to be prescribed by law; but the provisions of this Act shall not apply to refunding bonds issued exclusively for the purpose of refunding of the bonds or the interest thereon of such Counties, Districts, or Municipalities."

See also State v. City of Miami, 100 Fla. 1388, 131 So.2d 143.

To evidence a loan of a large sum of money to the county "by a note or indenture of indebtedness obligating Volusia County to repay said sum" with interest extending over a long period of years, would in effect be an attempt to create a binding, continuing, interest-bearing contract obligation of the county to pay money in the future, that would violate the intent of the provision of Section 6, Article IX, of the Constitution as amended in 1930, that counties shall have power to issue bonds other than refunding bonds "only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such counties." See Sholtz, Governor, v. McCloud, decided October 5, 1933; State, ex rel. v. Governor, 95 Fla. 117, 116 So.2d 66; In re: Advisory Opinion to the Governor, 94 Fla. 867, 114 So.2d 850; Cheney v. Jones,14 Fla. 587, 611.

Even if the county commissioners have authority to convey county property or other property to the United States or its constituted authorities, on which an armory may be constructed which the county may lease for use as an armory during a long term of years until the armory is paid for by the rentals when it will be conveyed to the county, Chapter 15861, Acts of 1933, appears to have been enacted for the purpose of securing loans from the United States under the emergency Acts of Congress, if needed for proper public improvements by counties and other subdivisions and municipalities of the State.

Reversed.

DAVIS, C. J., and ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.