White v. Crandon ( 1934 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This was a suit in equity wherein George White, as complainant, sued the individual members of the Board of County Commissioners of Dade County, Florida, to the end that the court might decree that the defendants individually account for and pay to the defendant, Dade County, Florida, of which they were the County Commissioners, the sum of $1,000.00 for the use and benefit of the road fund of said county. The case was referred to a Master for the taking of testimony and the submission of findings of law and fact upon the issues presented by the bill of complaint and the answers of the defendants. The Master reported findings in favor of the defendants, which findings were approved by the final decree of the Court from which this appeal is prosecuted.

It was admitted by the defendants that, acting as County Commissioners of Dade County, at an official meeting of the Board of County Commissioners, held at the Court House in Miami, they had approved a certain bill submitted to them in the sum of $1,000.00 as payment for "services of Associate Attorney" and thereupon issued a warrant against the Road Fund of said County in the sum of $1,000.00, payable to the order of Hudson Cason, the regularly retained attorneys for the Board of County Commissioners; that said warrant was afterwards delivered by Hudson Cason, the regularly retained County Attorneys, to one James M. Carson, of Miami, Florida, another attorney, to whom said warrant was endorsed by Hudson Cason at the direction of the Board of County Commissioners; that said warrant had been paid and that the payment of the warrant had been charged against the Road Fund of Dade County, Florida, pursuant to the warrant. The County Commissioners, however, contended that although they have had paid the said sum of $1,000.00 to the said James M. Carson for legal services to be rendered by said Carson, that such payment was for the purpose of compensating the said Carson for services to be rendered by him in securing the legal adjudication of a controversy then pending between the Board of County Commissioners and the Purchasing Agent of Dade County, including legal services to be rendered in connection with the prosecution in the Supreme Court of Florida of an action of quo warranto against the Purchasing Agent to test his power to act in the premises in contravention of certain authority claimed by the County Commissioners to be in conflict therewith.

It was denied by the defendants that the employment of Carson for the purpose and reason aforesaid was unlawful or that it constituted a misappropriation of the public funds of said County. On the contrary, the County Commissioners contended that the employment of Carson as Associate Counsel to assist their regular counsel, Hudson Cason, with regard to the subject matter was in all respects for a lawful and proper purpose, was done in good faith and that the services so hired on the part of Carson had been faithfully and properly rendered.

The controversy which formed the basis of the present proceeding was that reported under the title of State ex rel. Landis, Atty. Gen. v. Wheat, 103 Fla. 1, 137 Sou. Rep. 277, wherein this Court dealt with and construed the duties and powers of the Board of County Commissioners of Dade County, Florida, as affected by Chapter 10501, Special Acts of 1925, and Chapter 15159, Special Acts of 1931, Laws of Florida.

While in appropriate cases, where the circumstances may justify it, a member of a Board of County Commissioners will be held personally liable for money voted and paid out without authority of the law where the act in question is equivalent to a misappropriation of public funds so paid out, a majority of the Court are of the opinion that no personal liability is incurred by a member of a Board of County Commissioners having the power of disbursement of public funds in the administration of the Board's affairs, where there is such a conflict of authority between the Board of County Commissioners, acting under the general laws of the State, and a special county statutory officer purporting to act under a special law of the State, that it is reasonably necessary for the Board of County Commissioners to seek an adjudication of the rights and powers of the Board of County Commissioners as opposed to the rights and powers of the special statutory officer, in order to enable the County Commissioners to properly perform the duties devolving upon them as regularly elected County Commissioners of the County.

It is true that the County Commissioners of each county are constitutional officers whose duties and powers are prescribed by statute, and that where there is doubt as to the existence of authority, it should not be assumed. Hopkins v. Special Road Bridge Dist. No. 4, in Brevard County, 73 Fla. 247, 74 Sou. Rep. 310. It is likewise true that laws found upon the statute books are presumably valid and it is the duty of a Board of County Commissioners to obey the statutes until in proper proceedings they are passed upon by the courts and declared invalid or inoperative. State ex rel Gillespie v. Thursby, 104 Fla. 103, 139 Sou. Rep. 372. It is further true that a ministerial or executive officer of the government has no authority or right to decline the performance of purely ministerial duties which are imposed upon him by statute solely on the ground that such officer believes that the statute violates or contravenes the constitution, because all statutes are presumed to be and must be treated and acted upon by ministerial officers as constitutional and legal until their unconstitutionality or illegality has been judicially established.

But where apparent conflicts or contradictions are observed between the provisions of the general law affecting the duties of County Commissioners, and the provisions of a special Act relating to the duties of a special statutory county officer, to such an extent that personal obligations or liabilities upon the part of the County Commissioners may be incurred in their handling of the county finances and the disbursement of the county revenues, depending upon whether or not the special or local law has been properly enacted by the Legislature so as to become a law at all or not, such County Commissioners may lawfully make an expenditure of public moneys to defray the expenses and compensation of an attorney employed by them to seek an appropriate adjudication in the courts for the determination of the constitutional existence vel non of the local law, and an adjudication of the rights and liabilities of the Board of County Commissioners with respect to the observance of the general law as modified or affected by the special law, in the event that such special law is found to have been constitutionally passed.

In the present case, it appears that the Board of County Commissioners of Dade County, through their regularly employed County Attorneys, Hudson Cason, engaged the services of another attorney, James M. Carson, in good faith and for a fair price, this was for the purpose of having adjudicated in any appropriate way that said engaged counsel might see fit to pursue, to have settled the controversy then pending between said County Commissioners, as general county officers, and one Clarence L. Wheat, as County Purchasing Agent, acting under a special and local law, whose constitutional existence at that time, as well as general scope and validity, had been brought in question. A majority of the Court are of the opinion that such an employment is not subject to the complaint that it constitutes a misappropriation of county funds, and that it is within the scope of the powers given by Section 2153 C. G. L., 1475 R. G. S., to County Commissioners to represent the county in the prosecution and defense of "all legal causes."

A dispute which has bona fide arisen between the County Commissioners and another county officer regarding the disbursement of county revenues pursuant to the acts of the county officer, whose authority to act for and bind the county as Purchasing Agent is reasonably questionable by the County Commissioners, constitutes a "legal cause" which the County Commissioners are entitled to prosecute or defend under the authority conferred upon them by Section 2153, C. G. L. supra.

The authority of public officers to proceed in a particular way or only upon specific conditions, implies a duty not to proceed in any manner than that which is authorized by law. First Natl. Bank of Key West v. Filer, 107 Fla. 526, 145 Sou. Rep. 204. The duty of County Commissioners to comply with the indispensable legal formality of seeing to it that every warrant issued by the County Commissioners for the payment of a county claim is a proper legal charge against the county, entitles the Board of County Commissioners to seek an adjudication of the nature and extent of any obligation sought to be imposed upon them by statute to make a disbursement of county funds, where the constitutional enactment of the statute is reasonably in controversy or as to the scope and extent of the duty imposed is ambiguous and doubtful.

If the bill for legal services as paid to Mr. Carson was a proper charge against the county under the circumstances of this case, the fact that it was erroneously disbursed from the Road Fund instead of the proper county fund, is immaterial on the issue raised by the bill of complaint in the present suit. This is an effort to have this item charged to the County Commissioners personally as a misappropriation of moneys rather than attempt to have allocated the disbursement to the proper county fund.

A majority of the court are of the opinion that the decree dismissing the bill of complaint is not erroneous and the same should be affirmed, and it is so ordered.

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

ELLIS, J., dissents.