Upon the relation of municipal bondholders this court issued an alternative writ of mandamus requiring the City of Pompano to assess and levy taxes upon all the taxable property within the city limits under Chapter 13324, Acts of 1927, including the lands from which the jurisdiction of the city had been ousted by quo warranto judgment in 1934, State, ex rel. Att'y-Gen'l v. City of Pompano, 113 Fla. 246, 151 So. 485. The writ requires the tax to be sufficient to pay relator's matured bonds and the interest *Page 782 coupons thereon, or to show cause, etc. A motion to quash the alternative writ was denied. State, ex rel. Harrington, et al., v. City of Pompano, 132 Fla. 830, 182 So. 290. A return or answer to the writ was filed by the city, which, considered with the alternative writ and the record in the quo warranto case made a part of the return by reference, indicates that organic property rights of landowners in the areas covered by the ouster judgment are involved in this proceeding. Such owners are not parties to this action. A motion of the relators for a peremptory writ notwithstanding the return was denied in opinions filed December 1, 1938.
A re-argument was granted.
It is alleged and denied that the bonds are valid.
Municipalities in Florida exist only by virtue of the Constitution and statutes duly enacted pursuant to the Constitution and within the limitations imposed by the Constitution. The jurisdiction and authority of municipality are under the Constitution not inherent, but are only those that are delegated and prescribed by law; therefore authority of law must appear for the issuance of municipal bonds; and if the bonds are to be paid by taxation, authority to impose the tax and the subjects of the tax must appear in the law.
Section 8, Article VIII of the Constitution expressly provides that "the legislature shall have power to establish and to abolish municipalities" and "to prescribe their jurisdiction and powers." Such organic section requires "the jurisdiction and powers" of municipalities to be prescribed by statute.
By Chapter 6754, Acts of 1913, and Chapter 9876, Acts of 1923, the Town of Pompano was authorized to issue bonds for public improvements and to levy a tax upon all the taxable property in the town to pay the bonds. *Page 783
Chapter 13323, Acts of 1927, effective April 18, 1927, authorized the Town Council of the Town of Pompano to issue $375,000.00 of public improvements bonds, the same being a portion of $750,000.00 of bonds which, as stated in the Act, has been authorized "pursuant to an election held on March 16, 1926," and which bonds had "been validated by a decree of the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Broward County." Chapter 13324, effective May 11, 1927, abolished the Town of Pompano and "created and established to succeed such former municipality of Town of Pompano in Broward County, Florida," a new municipality to be known as City of Pompano," with "all the powers and privileges given to such municipal corporations under the general laws of the State of Florida," and with all the laws, ordinances, rights and privileges of the abolished town, not in conflict with the laws of the State, and with added powers and authority including the issuing of public improvement bonds and the levy of taxes to pay the bonds. And said Act provided that the City Council should provide for the payment of all outstanding indebtedness of the town and declared its obligations, including all issues of bonds, to be valid and binding upon the City. The bonds here sued on are within the amount authorized by Chapter 13323, recite full compliance with Chapters 13323 and 13324, and certify that all requirements of law had been performed. They are dated May 1, 1926, when the Town of Pompano was in existence, and were delivered June 25, 1927, as being issued by the City, after the City of Pompano was established as the successor to the Town of Pompano. Both the town and the city had authority to issue such bonds, and no lack of good faith is alleged. On this record the bonds are valid.
Relators claim a right to have de facto municipal jurisdiction *Page 784 exerted to tax lands from which de jure jurisdiction of the city has been legally excluded.
The doctrine of de facto municipal jurisdiction is not of constitutional or statutory origin. It is a product of judicial development, and may be adjudged and applied by the courts in proper cases to conserve contract rights of municipal bondholders, where it does not violate organic property rights of landowners who have not lost their rights to contest taxation to pay the bonds under de facto municipal jurisdiction.
In this case the bonds were by Chapter 13323, effective April 18, 1927, specifically authorized to be issued by the Town; and by Chapter 13324, effective May 11, 1927, the City was established and given the same authority the Town had. The bonds were delivered by the City while all the lands covered by Chapter 13324 were prima facie in the city limits; the bond contract obligation is by the city; and the statute, Chapter 13324, authorizes, and the bonds pledge, all the taxable property in theCity to be taxed to pay the bonds. Chapter 13324 did not repeal Chapter 13323, and did not limit the taxing authority of the City relative to the lands added to the municipality, as in Hayes v. Walker, 54 Fla. 163, 44 So. 747, under Chapter 5857, Acts of 1907. See also State v. Miami, 103 Fla. 5, 137 So. 261. The city now has de jure jurisdiction over, and authority to tax, only the lands that were within the Town limits before Chapter 13324 became effective. If de facto municipal jurisdiction may exist to tax lands that were illegally in the city limits when the bonds were issued, but have been legally excluded from municipal jurisdiction, such de facto jurisdiction must be adjudicated in appropriate proceedings with proper parties. See City of Winter Haven v. Klemm, 132 Fla. 334, 181 So. 153. See also Geweke v. Village of Niles, 368 Ill. 463, *Page 785 14 N.E.2d 482, 117 A.L.R. 262; State, ex rel., v. Town of Boynton Beach, 129 Fla. 528, 177 So. 327.
The quo warranto judgment of ouster in this case covered all the lands added to the municipality by Chapter 13324, Acts of 1927, as being incorporated in violation of Section 8, Article VIII of the Constitution. State, ex rel. Davis, v. City of Pompano, 113 Fla. 246, 151 So. 485. Such judgment of ouster not merely cover described parcels of land owned by the co-relator in the quo warranto case, as being incorporated, in the city in violation of the organic property rights of the owners of such illegally incorporated lands. See State, ex rel., v. City of Avon Park, 108 Fla. 641, 149 So. 409; State, ex rel., v. Town of Boca Raton, 129 Fla. 673, 177 So. 293; City of Coral Gables v. State,129 Fla. 834, 177 So. 290; State, ex rel., v. Town of Boynton Beach, 129 Fla. 528, 177 So. 327; State, ex rel., v. City of Coral Gables, 120 Fla. 492, 163 So. 308.
Where asserted organic rights of municipal bondholders conflict with asserted organic rights of property owners to resist alleged illegal or unjust taxation to pay municipal bonds, courts of competent jurisdiction may determine which party has the better claim to enforce its asserted organic rights. See City of Winter Haven v. Gillespie, 84 F.2d 285.
Mandamus is a discretionary writ, which when issued should be enforced upon equitable principles so that justice may be administered within the law, in cases where there is a defined or duly ascertained official or corporate duty which the relator has a right to require the respondent to perform, and there is no other adequate remedy, and the rights of third parties entitled to be heard are not involved. See State, ex rel., v. Carey,121 Fla. 515, 164 So. 199; State, ex rel., v. Greer, 88 Fla. 249,102 So. 739, 37 A.L.R. 1298; State, ex rel., v. A.C.L.R.R. Co.,53 Fla. 650, 44 So. 213, *Page 786 13 L.R.A. (N.S.) 320, 12 Ann. Cas. 359; State v. Richards,50 Fla. 284, 39 So. 152; Duncan Townsite Co. v. Lane, 245 U.S. 308,62 L. Ed. 309, 38 Sup. Ct. 99; State, ex rel., v. City of St. Petersburg, 126 Fla. 233, 170 So. 730.
The official acts commanded by the alternative writ to be performed by the respondent city are not shown by the allegations of the alternative writ considered with the return, to be official or corporate duties prescribed or duly ascertained, which the relators have a right to have enforced by a peremptory writ of mandamus.
I concur in denying a peremptory writ of mandamus on the record in this cause.