State v. Bd. of Public Instruction, Levy Cty. ( 1940 )

Appeal brings for review decree validating refunding bonds. Appellant presents five questions for our consideration as follows:

"Question 1. Where no specific reference or recital is made on the face of the proposed refunding bonds sufficient to identify and distinguish the original bonds to be refunded, is there a continuation and extension of the original indebtedness attempted to be refunded thereby, or do such purported refunding bonds in effect constitute a new indebtedness which would be unauthorized without an election pursuant to Section 6, Article IX of the Constitution of the State of Florida?

"Question 2. Where the homestead is subject to taxation for the payment of original bonds, now sought to be refunded, and there is no specific reference or recital made on the face of the proposed refunding bonds sufficient to produce an extension and continuation of the original obligation, and the homestead thereby escapes taxation for the payment of the refunding bonds, creating a change in the nature of the original obligation adding an increased tax burden to non-homestead property, may such refunding bonds be issued without an election pursuant to Section 6, Article IX of the Constitution of the State of Florida?

"Question 3. Does a provision in the refunding resolution obligating the board to levy, assess, collect, and apply annually $13,000.00, violate the provisions of Section 22, Chapter 15,772, Laws of Florida 1931, where it clearly appears that said sum of money is grossly in excess of the interest and sinking fund requirement and that the surplus so arising is to be used to the purchase and call of refunding bonds prior to the maturity dates stated therein?

"Question 4. The entire record, as well as the proposed refunding bond to be issued, being silent as to the retirement prior to maturity of the bonds to be refunded, was it affirmatively shown, where the County was required to levy, assess, collect and apply annually stated sums, to-wit, $3,500.00 for 1938, $7.000.00 for 1939, $13,000.00 for each subsequent year, that no change was made in the nature of the original obligation by accelerating and providing for the retirement of such new obligation that would invalidate such new bonds unless approved by a majority of the free-holders pursuant to Section 6 of Article IX of the Constitution of the State of Florida?

"Question 5. Does the validation and issuance of refunding bonds payable from the ten mills provided by Section 8 of Article XII of the Constitution violate such constitutional provision where, at 100%, collection, such ten-mill levy will produce only $15,000.00 and where the sum of $13,000.00 thereof is pledged to the payment of said bonds, and where it also appears that the sum of $6,000.00 annually is necessary for the operation of the public schools of the county, and that the payment of $13,000.00 on the bonds will materially disturb if not destroy the operation of the public schools of the County?"

Questions 1 and 2 are presented together.

It is contended that the reference appearing in the face of the refunding bonds is not sufficient to meet the rule stated in Fleming v. Turner, 122 Fla. 200, 165 So. 353.

The recitations in the bond are:

"* * * This negotiable bond * * * is issued in exchange for and as a continuation, extension, merger and renewal of a like amount of valid subsisting bonded indebtedness of said Board issued prior to November 6, 1934, and outstanding at the date of the passage of said resolution, and for the purpose of refunding said indebtedness; * * * and that, before the issuance of the issue of bonds of which this bond is one, provision has been made for the levy and collection of a direct annual tax upon all property under the jurisdiction of said Board, except only such property as would be exempt from taxation under the provisions of the laws and Constitution of the State of Florida, which were in force and effect at the time of the creation of the indebtedness refunded hereby, * * *. Said tax, when levied, shall be a part of the tax provided for by Section 8 of Article XII of the Constitution of the State of Florida."

These recitations are sufficient to meet the requirements and such recitations were approved by us in State v. Board of Public Instruction of Dade County, 126 Fla. 142, 170 So. 602.

The third and fourth questions are considered together. The record shows that about sixty per cent of the debt to be refunded is in default.

It is not made to appear that the provision of the refunding resolution obligating the issuing unit to levy, assess, collect and apply annually $13,000.00 to interest and sinking fund violates Section 22 of Chapter 15772, Acts of 1931. See State v. City of Clearwater, 125 Fla. 73, 169 So. 602; and State v. City of Sanford, 128 Fla. 171, 174 So. 339.

The record shows that the entire fund to be raised by taxation is to be used in the payment of interest and the retirement of bonds. It is not necessary for us to repeat what has been said in this regard in the opinions promulgated in the cases above cited.

Question 5 is based upon what may be termed a problematical or anticipated condition. The matter challenged does not go to the validity of the bonds but is addressed to the wisdom of the policy which has been approved by the adoption of the refunding resolution. We can not assume that the assessed valuation of the property taxable to produce the funds will remain as it was some three or four years ago but we may assume that the taxing authority had reason to believe that there will be funds available to meet the requirements necessary for the operation of public schools and to meet the requirement for interest and sinking fund as provided in the proceedings.

The cases above cited are sufficient authority to support the validity of the issue in this regard.

In oral argument the appellant has challenged the authority of the taxing unit to appoint as its fiscal agent, to effectuate the exchange of the refunding bonds for the old bonds, a foreign corporation and relies upon the opinion of this Court in the case of Dodge Taylor v. Williams, et al., filed February 23, 1940, not yet reported. The Court in the majority opinion in that case held:

"The law does not contemplate or permit the appointment of a foreign corporation representing 'the holders of a substantial portion of the outstanding bonds' as fiscal agents for the counties or districts in managing or controlling any of theofficial functions involved in the issuing of the refunding bonds." (Emphasis supplied.)

The present writer and Mr. Justice BROWN were, and are, of the opinion that the agency contract involved in that case did not delegate to the fiscal agent any of the official functions involved in the issuing of refunding bonds. It was upon the theory that that contract did not delegate such official functions to the fiscal agent that the majority of the Court held the contract in this regard invalid. Neither the majority nor the minority opinion in that case held that the issuing authority could not employ an agency of its choice, either domestic or foreign, to effectuate the exchange of bonds. In fact, such contracts have been repeatedly upheld by this Court as valid. See Pierce, et al., v. Isaac, 135 Fla. 101, 184 So. 669; Pierce, et al., v. Isaac, 134 Fla. 666, 184 So. 509, and cases there cited.

The record in the instant case shows nothing more than that the issuing authority has agreed that a foreign corporation authorized to do business in Florida has been designated as the fiscal agent to exchange the refunding bonds for the evidence of the original debt, par for par. The record does not show that the issuing authority has assumed any obligation to pay the designated fiscal agents any sum from any source as compensation for such services.