Parker v. Evening News Publishing Co. , 54 Fla. 544 ( 1907 )

Whitfield, J.

— O.11 June nth', 1907, The Evening News Publishing Company, a corporation, filed a bill of complaint in equity in the circuit court for Hillsborough county against the county commissioners and tax collector of Hillsborough county in which it is alleged that on January 8th, 1907, the county commissioners of Hills-borough county adopted a resolution awarding the printing of the delinquent tax list for Hillsborough county for the year 1907, and all other legal printing that comes under the jurisdiction of the board of county commissioners for the year 1907, to the Evening News of Tampa; that said contract was duly accepted and approved by the said Evening News, and was an existing and binding contract between the county commissioners and said Evening News, and was a part of the assets and good will of the said Evening News; that on January 24th, 1907, W. F. Stovall, by mesne conveyances, became the owner of all the property, assets and good will of the said Evening News, and did then and there become seized and vested with all the rights, title, privileges and immunities of the said Evening News, its contracts and assets of every kind and nature whatsoever, including the aforesaid contract between the county commissioners and the said Evening News; that on February 6th, 1907, at the regular February meeting the board of county commissioners passed a motion "to reconsider the letting of the public printing which was in violation of the aforesaid contract for the public printing to be given to the Evening News; that said resolution was passed without authority of law in so far as the printing of the delinquent tax list for the year 1906, for the reason that the board of county commissioners ■had already selected the Evening News as the newspaper in which to publish same; that afterwards the Evening News Publishing Company, a corporation, became seized and possessed of all the rights, title and interest of the said W. F. Stovall in and to the property, assets, good will, privileges and immunities of the said Evening News, and complainant then and there became seized and possessed, as part of the assets, good will, privileges and immunities as aforesaid, of the aforesaid contract and designation by the county commissioners of the newspaper in which to publish all the public printing for 1907, coming under their jurisdiction, and the delinquent tax list for 1906, and now has the right to do all the public printing coming within the jurisdiction of said county commissioners, and to receive therefor the legal rate of publication of said legal printing, and has the right to have delivered to it the delinquent tax list for the year 1906, and to publish the same and receive pay therefor at the legal rate as provided by law; that complainant having -a contract as aforesaid to do said printing, and having- the contract and being designated as the newspaper in which to publish the delinquent tax list for the year 1906, it has gone to a great expense in equipping itself for the services to be performed under said contract and designation, and that it has been at all times ready .and willing to receive and publish as aforesaid: that at the regular meeting in May, 1907, the county commissioners, in violation of complainant’s rights and without warrant of law passed a resolution designating the Tampa Times as the newspaper in which shall be published all advertisements over which the board had control, including- delinquent tax sale advertisements; that said resolution in sol far as it attempts to affect the rights of complainant to such printing is null and void because of the existing contract with complainant; that the county commissioners having designated and selected complainant to publish as aforesaid had no authority, right or warrant of law to designate or select any other newspaper for such publication; that being so designated and having said right to publish will give complainant’s newspaper a prestige in the county, and so increase its circulation and make its advertising and other business more profitable; that the county commissioners have refused and are refusing to carry out said contract; that the tax collector is threatening to give the tax list of delinquent taxes for the year 1906 to the Tampa Times, etc. The prayer is that a binding contract be decreed to exist with complainant' for the legal printing and for injunctional relief, etc. A temporary injunction was granted and an appeal was taken by the defendants who assign as error the granting of the temporary injunction.

The powers and duties of county commissioners are purely statutory. Section 5, Art. 8, Constitution as amended; Board of Commissioners of Escambia County v. Board of Pilot Commissioners of Port of Pensacola, 52 Fla. 197, 42 South. Rep. 697.

Section 558 of the General Statutes of Florida providing for advertising and selling real estate for unpaid taxes requires the publication of the delinquent tax list in a newspaper, “said newspaper to be selected by the board of county commissioners.” The rates to be paid and the method of payment are fixed by law.

The county commissioners are not required to' make a contract for the public printing but only to select the newspaper in which the delinquent tax list is to be published. The mere selection of a newspaper to do public printing does not bind the newspaper to do the printing nor does the mere selection bind the county commissioners unless so provided by statute. There can be no such thing as a vested right in a mere selection or designation to do the public printing under the statute above quoted.

There is no allegation of an express contract other than the resolution designating the Evening News as the newspaper to do the legal printing. Such a selection or designation by the county commissioners implies the exercise of a discretion based upon' considerations of qualification, fitness, etc., for the work and is not of itself a contract assignable at pleasure by the one designated or selected. See Campbell v. Board of Com'rs of Sumner County, 64 Kan. 376, 67 Pac. Rep. 866.

It is alleged that because of the designation of the Evening News the complainant “has gone to great expense in equipping' itself for the services to be performed under said contract and designation.” But it is also alleged that the original designation was made January 8, 1907, and that on January 24, 1907, the assets and good will and all rights, title, privileges and immunities of the Evening News passed to Stovall; that on February 6, 1907, the county commissioners reconsidered the designation of the Evening News; and that afterwards the complainant acquired the Evening News. Thus it appears that in sixteen days after the designation the Evening News passed to an individual, and thirteen days thereafter the county commissioners at a regular monthly meeting reconsidered the designation of the Evening News. Under these circumstances it does riot appear that the Evening News was misled to its pecuniary disadvantage. It is not stated when the complainant became the owner of the Evening News property except that it was after the designation was reconsidered; nor does it appear" in what manner or to what extent complainant has provided' equipment and has been injured by the reconsideration of the designation of the Evening News, even if the complainant could complain of it here.

The power given to the county commissioners by the statute to designate implies discretion, and includes the power to reconsider and to re-designate, when private rights are not directly injured, if the interests of the public require it; and the action of such officers is presumed to be in good faith for the public good.

It appears from the bill of complaint that- the Tampa Times is claiming some rights in the premises antagonistic to the complainant and it has not been made a party to the suit.

Upon the showing here the temporary injunction was erroneously granted.

The order appealed from1 is reversed.

All concur, except Shackleford, C. J., providentially absent.