Hathaway v. Munroe

In a suit brought by a citizen tax payer, the chancellor granted and refused to vacate an order enjoining the awarding and execution of stated highway construction contracts by the State Road Department. An appeal was taken and a supersedeas is asked on the grounds that a citizen taxpayer has no right to maintain the suit and that the proposed contracts are legal and within the authority conferred by existing statutes. Sec. 1644, Comp. Gen. Laws 1927; Sec. 1, Chap 9312, Acts 1923.

A citizen taxpayer may have a right to maintain a suit to enjoin the execution of illegal contracts involving payments from a public fund to which the citizen taxpayer is a contributor. See Anderson v. Fuller, 51 Fla. 380, 41 So. R. 684, 6 L. R. A. (N. S.) 1026n, 120 Am. St. 170; Rickman v. Whitehurst, 73 Fla. 152, 74 So. R. 205. The wisdom or policy of official action may not be a predicate for an injunction when the action taken does not involve illegality or a palpable abuse of authority amounting to illegality.

Whether a supersedeas should upon appropriate application be granted, is for judicial determination upon due consideration of all rights in the premises, of the effect of a supersedeas upon the subject matter and of the main objects of the suit or action. See Willey v. Hoggson, 89 Fla. 446, 105 So. R. 126 and authorities cited, 44 Fla. 244; 41 Fla. 494.

A supersedeas is generally invoked to maintain the status quo of the property or of the rights constituting the subject matter of the litigation, pending appellate proceedings. In general a supersedeas will be granted if it will preserve the rights of the parties pending appellate review *Page 33 and if the record properly presents a substantial debatable question materially affecting the rights of the parties in the premises. But if a supersedeas would permit the status of the subject matter to be changed so as to render subsequent proceedings in the cause ineffectual with reference to the main objects of the suit, it should be denied unless upon due consideration it is clear that the order or decree to be superseded is erroneous.

If this were an ordinary ex parte application for a supersedeas, it should be denied so that the contemplated contracts would be held in abeyance until their validity could be determined in due course of appellate procedure, since a supersedeas would in effect deny the main relief sought before a full hearing is had. If on full hearing and consideration by the Court the order appealed from is found to be correct a supersedeas should be denied. Crawford v. Gilchrist, 64 Fla. 41, 59 So. R. 963, An. Cas. 1914 B. 916. See also Jacoby v. Shomaker, 26 Fla. 502, 7 So. R. 855. But this application for a supersedeas is made to the Court en banc and the matters of law involved have been briefed and orally argued by a counsel for all parties; and if upon due consideration the Court is of opinion that as matter of law on the record as presented the injunction should not stand, a supersedeas should be granted by the Court, since the case is entitled to precedence and has been heard on full argument.

The contention of the complainant in effect is that as the particular State highway construction contracts were proposed to be made in December 1928 though they could not be performed during that year, the contracts if entered into would unlawfully anticipate the budget for 1929 and would violate the provisions of Sections 2 and 6 of Article IX of the State constitution that "the Legislature shall provide for raising revenue sufficient to defray the expenses *Page 34 of the State for each fiscal year"; and that "the Legislature shall have power to provide for issuing State bonds only for the purpose of repelling invasion or suppressing insurrection".

Section 2 of Article IX contemplates that sufficient revenues shall be raised each year to defray the expenses of the State for that year and that during any fiscal year no indebtedness for expenses of the State shall be incurred substantially in excess of the revenues that may be provided for that year. Section 6, Article IX in effect forbids the issuing of State bonds or other evidences of State indebtedness except to repel invasion or to suppress insurrection in the State, the State now having no outstanding bonds to be redeemed or refunded.

In Re Advisory opinion, 94 Fla. 967, 114 So. R. 850, the question was the authority of a State agency to borrow money. No such question is involved in this case.

A contract under the statute for constructing State highways is not a violation of Section 2, Article IX, when the construction is to be paid for from funds already provided for by law and which will probably be in hand before the construction is completed. And such a contract does not violate Section 6, of Article IX, since it does not involve the borrowing of money or the issuing of bonds or other evidences of State debt, but merely provides for paying for State highway construction as the work is done. The statute requires the State Road Department to make in January of each year an estimate of its resources for the ensuing year which are available for road construction and maintenance and to make a budget of work so planned as to exhaust the estimated resources of the department for the year, with stated exceptions; but the statute does not require road construction contracts to be entirely performed during the year in which the contracts are made. *Page 35 Nor does the statute forbid the making during any year of construction contracts that are contemplated by the budget of that year, though the contracts are to be performed in a succeeding year and to be included in the budget and compensated for from the revenues of such succeeding year. It is expedient and for the public interest that contracts be made for highway construction as such contracts may be duly authorized and most needed under all pertinent considerations; and a reasonable range of discretion should be allowed administrative officers when acting in good faith within the general scope of their authority. Fraud is not alleged. While a showing that the State Road Department did not adopt a budget for 1928 in the manner required by statute and that the resources for 1928 will not pay all of the accounts for the year 1928, may tend to show a violation of the budget law as to such unpaid accounts, and while this with a further showing that State highway construction contracts that are contemplated by the budget of one year are proposed to be made the latter part of that year to be paid from the contemplated revenues of the succeeding year might raise questions of policy and of administration, yet such matters alone do not render the contracts illegal, even though the statute requires a budget to be made at the beginning of each year and requires construction sufficient to exhaust the budget revenues; since the contracts are not accounts due in excess of the current budget, and the statute does not provide for annual construction units, but contemplates continuous construction at the points and as may be needed, to be paid for from annual resources which are to be exhausted each year but not substantially exceeded any year by construction operations.

Even though the unpaid accounts of 1928 may illegally exceed the revenue of the department for that year, that *Page 36 alone does not render illegal any construction contracts that are to be performed after 1928 and to be paid for from funds already provided by law to be raised for future budgets. Aside from the unpaid accounts for construction in excess of the 1928 revenues which may be a violation of the budget law, there is no showing that the contracts are not for proper construction under controlling statutes, or that the budget for 1929 will be unduly impaired by the contemplated construction contracts or that the making of the contracts is a palpable abuse of authority under existing statutes.

Supersedeas granted.

TERRELL, C. J., AND BROWN AND BUFORD, J. J., concur.

STRUM AND BROWN, J. J., concur specially.

ELLIS, J., dissents.