On consideration of Motion to Clarify our opinion and judgment of February 4th, 1947, the majority of the Court has concluded that it would serve a public interest to adjudicate whether or not relator's certificates issued under Chapter 10145 come within the class of obligation to which the proceeds of the "Second Gas Tax" are applicable by the State Board of Administration.
The "Bonds" to which the Board may apply such funds include "bonds" as defined in Section 16 (b) of Article IX of the Constitution, to-wit:
"(Bonds defined) The word 'bonds' as used herein shall include bonds, time warrants, notes and other forms of indebtedness issued for road and bridge purposes by any *Page 574 county or special road and bridge district or other special taxing district, outstanding on July 1st, 1931, or any refunding issues thereof."
It is clear that these are certificates of indebtedness and were issued for road purposes and were issued by the county for a special taxing district for road purposes and that they were outstanding on July 1st, 1931, and are, therefore, within the class of obligations to which respondent might apply its funds. Of course, such authorized application contemplates application to the payment of valid certificates or payment to the extent of validity.
That the above statement is a correct enunciation is concurred in by Justices TERRELL, BUFORD, ADAMS and BARNS and is dissented to by Mr. Chief Justice THOMAS, Mr. Justice CHAPMAN and Mr. Associate Justice FABISINSKI. As to this point the view of the majority prevails and is, therefore, declared to be the law.
Justices TERRELL, BUFORD and ADAMS have the view that the above conclusion having been reached, it follows that under the pleadings before us in which no attempt is being made to have adjudicated any lien that may have been created by the issuance of the certificates, the motion to quash should be denied and the peremptory writ of mandamus should issue unless sufficient return be filed before a day to be named.
Mr. Justice BARNS has the view that a peremptory writ should not issue because the history of the litigation in this Court from 1930 to the present date with two such cases now pending over certificates issued under Chapter 10145 clearly shows relator's rights are not so clear and certain as to not admit of a reasonable controversy for reasons heretofore stated, and among other things, because it has not been determined that the benefits to the respective lands were substantially equal to the assessments.
Mr. Chief Justice THOMAS, Mr. Justice CHAPMAN and Mr. Associate Justice FABISINSKI hold the view that the certificates are not within the class of obligations to which the respondents may apply the indicated funds.
It further appears that to enable the settlement of such *Page 575 certificates of indebtedness, the legislature in 1943, in order to promote the public's welfare in this regard, enacted Chapter 22204, Section 1 of which reads as follows:
"That the reduction, compromise and settlement of all State, County and District Taxes other than drainage taxes levied and assessed for the year 1942, or prior years, including unpaid taxes for any omitted year or years, against any and all lands situate in Hillsborough County, Florida, against which there are outstanding uncancelled paving certificates representing assessments under the provisions of Chapter 10145, Laws of Florida, Acts of 1925, shall be and are hereby authorized upon such terms and for such amounts as may be determined by the Board of County Commissioners of Hillsborough County, Florida, to be for the best interest of said county, by resolution adopted by and entered in the minutes of said Board."
In view of the foregoing conclusions taken in connection with our opinion, supra, and because of the lack of our facilities to take testimony, Mr. Justice TERRELL, Mr. Justice BUFORD, Mr. Justice ADAMS and Mr. Justice BARNS, constituting a majority of the Court, hold that our judgment of February 4th, 1947 is modified to read: The respondents should be discharged without prejudice to the relator to proceed in the Circuit Court as he may be advised.
So ordered.
TERRELL, BUFORD, ADAMS, BARNS, JJ., and FABISINSKI, Associate Justice, concur.
THOMAS, C.J., and CHAPMAN, J., being of the opinion that the bonds in question do not fall within the class of obligations contemplated in the constitution, adhere to the judgment of 4 February 1947.