On April 7, 1933, we rendered a decision and made an order herein overruling the motion to quash the alternative writ of mandamus. Permission was granted respondents to file a further return, and on the 19th day of July, 1933, they filed their answer and return containing twenty-three paragraphs. The relators have filed general and special demurrers to the answer and return, and also motions to strike certain paragraphs thereof. These are now before us for consideration.
The demurrers attack the answer as a whole, and also each paragraph thereof that does not specifically and unqualifiedly admit allegations of the alternative writ of mandamus.
The respondents, in their answer and return, have undertaken to set forth many of the contentions urged and questions raised by them on their motion to quash the alternative writ of mandamus. These questions have been reargued, and again thoroughly briefed by the counsel representing the respondents. However, we do not find anything presented in the argument at this hearing, nor in the carefully prepared briefs of the able counsel representing the respondents, *Page 560 to cause us to change our views or to reverse our holdings on the propositions raised by the motion to quash the alternative writ of mandamus. Our holding as to the constitutionality of the statutes and our construction of the statutes in the opinion rendered on the motion to quash the alternative writ of mandamus have therefore become and are the law of the case regarding these matters.
The demurrers to and the motions to strike those paragraphs of the answer and return which undertake to raise again the propositions decided in the opinion rendered on the motion to quash the alternative writ, are well taken, and are therefore sustained, and such paragraphs are stricken.
In paragraphs 3, 4, 22 as amended, and 23, of the answer and return, the respondents undertake to plead certain matters of defense or, which they claim should bar the issuance of a peremptory writ of mandamus, that were not raised before us and passed upon in our consideration of the motion to quash the alternative writ.
The demurrers and motions to strike are directed at and attack the sufficiency of the allegations of each of these paragraphs as constituting a defense, or bar to the issuance of a peremptory writ, on the facts alleged in the alternative writ of mandamus.
In paragraph three of the answer and return the respondents seek to set up as a bar to the issuance of a peremptory writ of mandamus the fact that the Trustees of the Internal Improvement Fund of the State of Florida hold drainage tax sale certificates for large amounts which they have not paid, nor have they paid the drainage tax accruing against the land after the expiration of two years from the date of such certificates. It is claimed that because of the failure of the trustees to pay such amounts to the Board of Commissioners *Page 561 of Everglades Drainage District, they, the respondents, should not be required to prepare the lists of land for the assessment and levy of the drainage tax for the year 1932 as they are commanded to do under the provisions of Section 1167, Revised General Statutes of Florida, Section 1537, Compiled General Laws.
It is further set up in paragraph three of the answer and return that the Three-Judge Statutory Federal Court for the Northern District of Florida, in the case of Rorick, et al., v. Board of Commissioners of Everglades Drainage District, et al., 57 F.2d, page 1048, has held that the provisions of Chapter 14717, Laws of Florida, Acts of 1931, requiring that all drainage tax sale certificates held by the Trustees of Internal Improvement Fund, be transferred to the Board of Commissioners of Everglades Drainage District, is unconstitutional and void in so far as they affect the holders of bonds issued prior to the Act. It is also, in substance alleged, that, in the said decision of the Three-Judge Federal Court, above referred to, it was held that under the provisions of Section 12, Chapter 6456, Laws of Florida, Acts of 1913, as amended by Chapter 7305, Laws of Florida, Acts of 1917, it is made the duty of the Trustees of the Internal Improvement Fund to pay cash immediately for the taxes on all lands bid off at drainage tax sales by the tax collectors of the counties embraced in whole or in part in said Everglades Drainage District. It is further claimed that the said decision of the Three-Judge Federal Court held that the Trustees of Internal Improvement Fund are required to pay the drainage taxes to Everglades Drainage District upon all such lands bid in for them by the tax collectors after two years from the date of the tax sale certificates. It is then alleged in substance that the drainage tax sale certificates held by the Trustees of the Internal *Page 562 Improvement Fund together with the interest, and the subsequent tax accrued on all such lands amounts to about $5,000,000.00; and that if the Trustees of the Internal Improvement Fund would pay such sum to the Board of Commissioners of Everglades Drainage District there would be no necessity for the assessment of the drainage tax, as the respondents would have funds sufficient to pay the past due principal and interest on the bonds held by the relators and others.
Even if we should hold that the Trustees of the Internal Improvement Fund were, and are, required, under the law, to pay cash for all lands bid off for said trustees by the tax collectors, and that the same should be paid immediately as is required of individual purchasers at such tax sales, and even if we should hold that the Trustees of the Internal Improvement Fund are required to pay to the Everglades Drainage District, the drainage taxes on all lands described in tax certificates held by them, after the date of the vesting of title in them under the statutes; and even if it should be shown that large sums are now due by the trustees, to the Everglades Drainage District as alleged in the answer, it would not, in our opinion, excuse the failure of the Board of Commissioners of Everglades Drainage District to make up the lists of lands upon which drainage tax has been levied and assessed by statute, and as they have been directed to do in the alternative writ of mandamus herein.
The Legislature determines and fixes the rate and amount per acre of the drainage tax. As we have held in the opinion rendered herein, on the motion to quash, the rate and amount of acreage tax, fixed by Chapter 10026, Laws of Florida, Acts of 1925, is the rate which the relators as *Page 563 holders of refunding bonds are entitled to have levied and assessed and entered on the tax rolls.
Under the provisions of Section 1167, Revised General Statutes, Section 1537, Compiled General Laws, the Board of Commissioners of Everglades Drainage District are required to make up the lists of lands upon which the tax is levied and assessed, and certify, to the tax assessors of the several counties embraced in the district, to be entered on their respective tax rolls.
The mere fact, if it is a fact, that under the law the Trustees of the Internal Improvement Fund have moneys belonging to the Everglades Drainage District, or, are indebted to such district in an amount sufficient to pay all the principal and interest of outstanding bonds of the district, will not, in our opinion, excuse respondents in failing to perform the ministerial duty clearly imposed upon them by Section 1167,supra.
There is nothing set up in paragraph three which under the law will excuse the respondents from obeying the command of the alternative writ of mandamus. The demurrer, therefore, and the motion to strike this paragraph of the return must be sustained and the paragraph stricken.
Paragraph four of the answer and return undertakes to set up, as a reason for not obeying the mandate of the alternative writ of mandamus, the provisions of sub-paragraph (h) of Section 2 of Chapter 14717, Laws of Florida, Acts of 1931. This is the section of the statute making the State Treasurer Ex-Officio Treasurer of Everglades Drainage District and making him, as such, custodian of all the moneys, securities and bonds belonging to the Everglades Drainage District. Also providing for the paying out of such funds, upon the warrant of the Board of Commissioners *Page 564 of Everglades Drainage District signed by proper officers of the Board.
We find nothing in paragraph four of the answer and return to legally prevent or excuse the respondents from obeying the commands of the alternative writ. The demurrer to this paragraph of the answer and return is therefore sustained and the paragraph stricken.
In Paragraph 22 of the answer and return the respondents undertake to show their inability to comply with the command of the alternative writ of mandamus. If the allegations of fact found in the answer are sufficient to show that the respondentscannot legally comply with the mandate of the alternative writ and with the statuory requirements of Section 1167, Revised General Statutes, then the answer or return is sufficient, and a peremptory writ of mandamus would not issue to compel the Board of Commissioners of Everglades Drainage District to do an impossible act, or an act which, under the law they cannot perform. If such is the case the demurrer to the paragraph must be overruled. We should therefore examine the allegations of this paragraph with the amendment thereto for the purpose of ascertaining whether or not the allegations of fact, therein contained, are sufficient to show the legal inability of the respondents to obey the command of the alternative writ, and to perform the ministerial duties required of them under the provisions of said Section 1167, Revised General Statutes of Florida, Section 1537, Compiled General Laws, supra.
The paragraph of the answer now being considered, alleges in part the following:
"Further answering, respondents say they are unable to perform the command of the alternative writ, and are utterly unable to make up tax lists or assessment rolls, or to publish *Page 565 notices required by law to be published, or to hold a meeting or meetings, or to mail the tax lists or assessment rolls to the tax assessors of the counties lying wholly or partly within Everglades Drainage District, or to pay the tax assessors for extending the taxes of Everglades Drainage District upon the county tax rolls of their respective counties, for the reason that the Board of Commissioners of Everglades Drainage District is without funds so to do. That all proceeds of Everglades Drainage District taxes, and also all other moneys of the Board of Commissioners and of Everglades Drainage District are paid to W. V. Knott, as Treasurer of the State of Florida, as custodian of the funds of said district, to be disbursed upon proper warrant or warrants as aforesaid; that the only means the Board of Commissioners of Everglades Drainage District has of obtaining funds for meeting expenses, is by warrant on said W. V. Knott, Treasurer of the State of Florida, as custodian of the funds of Everglades Drainage District. That on May 19, 1931, in the United States District Court for the Northern District of Florida, a bill was filed by H. C. Rorick, Walter H. Lippincott and J. R. Easton by their solicitors, Wm. Roberts and Watson, Pasco Brown, against the Board of Commissioners of Everglades Drainage District, the members thereof, and others, for the purpose, among other things, of enjoining the Board of Commissioners of Everglades Drainage District from preparing tax lists unless they should include the drainage tax levied at the rate set forth in Chapter 10026, Acts of 1925, and of enjoining the Treasurer of the State of Florida, as custodian of the funds of the Everglades Drainage District, from applying any funds, except in payment of principal and interest of bonds. A supplemental bill was filed in said cause by the plaintiff on July 4, 1931, whereby the enactment *Page 566 of Chapter 14717, Acts of 1931, was alleged, and the same relief prayed as in the original bill."
Continuing, paragraph 22 of the answer and return alleges in substance, that on January 4, 1932, the application of plaintiff, for injunction, referred to above, came on to be heard before the court composed of Honorable NATHAN P. BRYAN, Judge of the Circuit Court of Appeals, Fifth Circuit, Honorable WILLIAM B. SHEPPARD, Judge of the United States District Court of the Northern District of Florida, and Honorable LOUIE W. STRUM, United States District Judge of the Southern District of Florida, and that on April 13, 1932, said court handed down an opinion (57 Fed. [2d] 1048) in which it "expressed the view" that the proceeds from acreage taxes and other funds of the district, except the ad valorem tax under the Acts of 1921, are specially appropriated and pledged to the extent necessary to pay bonds and interest, also the following:
"It is the duty of the State Treasurer and of the Board of Commissioners to devote the said funds to the purposes named, as far as may be necessary, before any part thereof for any other purpose."
It is then, in substance, further alleged, that since the filing of the said opinion in the Federal Court mentioned above, the said W. V. Knott, State Treasurer, as custodian of the funds of Everglades Drainage District has declined to honor any warrants drawn on him as such officer, and has declined to disburse any money at all for the administration or maintenanceof the district, or to pay any of the employees of thedistrict, or for the payment of any of its obligations, or tomeet any of its expenses, or for any other purposes. (Italics supplied.)
It is further alleged, in substance, that after the opinion of the Three-Judge Federal Court already referred to herein, *Page 567 H. C. Rorick, Walter H. Lippincott and J. R. Easton, to effect a collection of a judgment, recovered by them against the Board of Commissioners of Everglades Drainage District in the sum of $184,349.00, secured the issuance of an alternative writ of mandamus in the District Court of the United States, Northern District of Florida, directed to W. V. Knott, Treasurer of the State of Florida as custodian of the funds belonging to the Board of Commissioners of Everglades Drainage District, and to said district, which writ was duly served on said W. V. Knott in his official capacity, and that he duly filed his answer and return to said alternative writ in which he alleged that on May 31, 1932, the date the alternative writ was served on him, he had on hand as custodian of the funds of Board of Commissioners of Everglades Drainage District the sum of $68,375.86. That a demurrer to this return and answer was sustained by the Honorable W. B. SHEPPARD, Judge of the said court, and a final judgment was entered directing the issuance of a peremptory writ of mandamus requiring the respondent W. V. Knott, in his official capacity to pay over to the relators in said proceeding, upon their judgment so much of the proceeds of the taxes levied and imposed by Chapter 6456, Laws of Florida, Acts of 1913, and Acts amendatory thereof, and so much of any other moneys in the possession of the respondent at the time of the service of the alternative writ of mandamus, belonging to the Board of Commissioners of Everglades Drainage District, or said district, as might be necessary to pay the judgment held by the relators.
It is further set forth that the respondent W. V. Knott, in his official capacity, perfected his appeal from this judgment to the United States Court of Appeals for Fifth Circuit, which appeal is still pending. *Page 568
The securing of the issuance of a second alternative writ of mandamus out of the United States District Court of Northern District of Florida on May 27, 1933, by the relators H. C. Rorick and others against said W. V. Knott, in his official capacity, is also set forth in paragraph 22 of the return. This alternative writ of mandamus, it is alleged, was secured on May 29, 1933, and that by it the relators were seeking to "tie up" any additional funds which might have been received by the said W. V. Knott, as custodian of the funds belonging to the Board of Commissioners of Everglades Drainage District, or the said district. That a motion to dismiss said second alternative writ is now pending in said Federal Court.
After reciting the foregoing matters and proceedings, the respondents conclude paragraph 22 of their answer and return with the following allegations:
"And so it is that the Everglades Drainage District and the respondents herein are wholly without money which can be used for postage, clerical help, office expenses, administration costs, expenses of materials, legal services and for any other purposes whatsoever; that the preparation of tax lists would require the services of one person and a helper thoroughly familiar with land descriptions in Everglades Drainage District and its tax system, for from two to six days, and four typists for from two to six days; that the materials required for the preparation of lists, including paper, pencils, etc., would be considerable; that the mailing of notices to papers for publication would require postage; that before publication could be completed, advertising costs would have to be paid; that checking of proofs of publication would require the services of one person for approximately a week; that notice of the meetings of the Board to hear complaints concerning the lists would have to be *Page 569 mailed out by the board; that the board would be required to hold a meeting and the expenses of attendance to the members thereof would be considerable, in that it would require travel by the members as follows: Marcus A. Milam, 140 miles; Ralph A. Horton, 94 miles; W. H. Lair, 100 miles, T. W. Weeks, 170 miles. That upon approval of the lists they would have to be forwarded to the county tax assessors of the said respective counties, and postage paid thereon; and the assessor would be required to be paid, for extending the taxes on the county tax rolls, and their fees therefor would exceed $10,000.00. That the board has no funds available with which to meet and pay any of said expenses, and is therefore totally unable to prepare tax lists or to have same published as required by Section 1167, or any other Act, or to forward said lists to the respective tax assessors as required by said alternative writ, or to pay the said tax assessors for extending the taxes upon their respective tax rolls."
By leave of the court, on the day the demurrer and motions to strike the answer and return were heard, the respondents amended paragraph 22 of the return by adding the following:
"That the inability of respondents to perform the command of the alternative writ is of long standing, that the general conditions set forth in this paragraph existed long before the institution of this suit and were well known to the relators; that the respondents are willing and desirous to levy the taxes required by law, all of which more fully appears by a resolution adopted by the Board of Commissioners of Everglades Drainage District, July 18, 1932, a certified copy of which is attached hereto marked Exhibit J, and by reference made a part hereof as fully as if here set forth in extensio." *Page 570
Paragraph 22 with the amendment thereto undertakes to set up matters in confession and avoidance. This Court has held that great strictness of pleading is required in returns to alternative writs of mandamus which set up matters of confession and avoidance. See State, ex rel. v. Jacksonville,22 Fla. 21, State, ex rel. v. Atlantic Coast Line Railroad Co.,97 Fla. 816, 122 So. 256.
In State, ex rel. v. Bloxham, 33 Fla. 482, 15 So. 227, we held as follows:
"A return in confession and avoidance must set up indetail every fact necessary to establish the avoidance.Allegations of ultimate conclusion of fact not sufficient." (Italics supplied.)
"The return must not set up conclusions of law." Ray v. Wilson, 29 Fla. 342, 10 So. 613.
In the case of State, ex rel. v. Seaboard Air Line Railroad Co., 92 Fla. 1143, we held that:
"A return to sufficient writ of mandamus must state all facts relied upon by respondent with such precision and certainty as fully to advise the court of all the particulars necessary to enable it to pass upon the sufficiency of the return, and its statements cannot be supplemented by inference or intendment." (Italics supplied.)
We will now examine the allegations of paragraph 22 of the answer and return, in connection with applicable Everglades Drainage District statutes, applying to the principles enunciated by us in our previous decisions referred to above, and determine the sufficiency of such allegations as a defense or bar to the granting of a peremptory writ, or if the matters set up in the allegations of this part of the return and answer are sufficient to show a real and legal inability of the respondents to comply with the commands of the alternative writ of mandamus. *Page 571
It appears that the inability relied upon by respondents is the lack of funds to enable them to obey mandate of the alternative writ and to comply with the requirements of Section 1167, Revised General Statutes, Section 1537, Compiled General Laws, supra. It is alleged that funds are necessary to secure the necessary "postage, clerical help, office expenses,administration costs, expense of meeting or meetings and legalservices;
"That the preparation of the tax lists would require the services of one person and a helper thoroughly familiar with land descriptions in Everglades Drainage District and its tax system, for from two to six days and four typists for from two to six days. That the materials required for the preparation of tax lists, including paper, pencils, etc., would be considerable; that the mailing of notices to papers for publication, would require postage; that before publication could be completed, advertising costs would have to be paid; that checking of proofs of publication would require the services of one person for approximately a week; that notice of the meetings of the board to hear complaints concerning the lists would have to be mailed out by the board; that the board would be required to hold a meeting and expenses of attendance of the members thereof would be considerable."
"That upon approval of the lists they would have to be forwarded to the county tax assessor of said respective counties, and postage paid thereon; and the assessors would be required to be paid for extending the taxes on the county tax rolls, and their fees therefor would exceed $10,000.00."
It is claimed that the board of commissioners has no fundsavailable with which to meet and pay any of the foregoing items of expense, and is "therefore totally unable to prepare taxlists or to have them published as required *Page 572 by Section 1167 or any other Act, or to forward said lists tothe respective tax assessors as required by said alternativewrit, for extending the taxes upon their respective tax rolls." (Italics supplied.)
This lack of funds, as will be seen, is explained by alleging that W. V. Knott, State Treasurer, is by statute made the custodian of all funds, securities, bonds, etc., belonging to the Everglades Drainage District whether derived from drainage tax or otherwise, and that no moneys can be paid out by him for any purpose except upon warrant or warrants signed by certain officials of the board; and that because in a certain decision of the Three-Judge Federal Court for the Northern District of Florida, in the case of Rorick, et al., v. Board of Everglades Commissioners, et al., 57 F.2d, supra, the court "expressed the view" that the proceeds from acreage taxes and other funds of the district, except the ad valorem tax underthe Acts of 1921, are specially appropriated and pledged to the extent necessary to pay bonds and interest and further said, "it is the duty of the State Treasurer and board of commissioners to devote the said funds to the purposes named as far as may be necessary before any part thereof for any other purpose." And further because of a certain writ of mandamus issued out of the United States District Court, Northern District of Florida, in favor of said Rorick, et al., requiring said W. V. Knott, as Treasurer, to pay the funds held by him as custodian of the funds of Everglades Drainage District, toward satisfying a judgment recovered by said Rorick, et al.; and further because the said W. V. Knott, State Treasurer, as custodian of the funds of Everglades Drainage District, hasdeclined to honor any warrants drawn on him as such officer, and has declined to disburse any money *Page 573 at all for administration or maintenance of the district, or for the payment of any obligation, etc.
In the first place, let us examine the law, and see if it was the legislative intent that the moneys be in hand, for all the purposes mentioned by the respondents, before the preparation of drainage tax lists. Evidently it was not contemplated for the years 1913 and 1915.
As has already been observed, in this case, the Everglades Drainage District was organized and formed by the provisions of Chapter 6456, Laws of Florida, Acts of 1913. Section 8 of this Chapter provides as follows:
"At such first meeting of the said board, and thereafter the second Tuesday in January of each year the said board shall prepare for each county in which said district may lie, in whole or in part, a list of the lands lying in such county and embraced in said drainage district, etc."
This section of Chapter 6456, supra, has been amended from time to time and prior to and since July 1, 1925, with such amendments codified as Section 1167, Revised General Statutes of Florida. The "first meeting of the board" referred to in Section 8, Chapter 6456, supra, was a meeting that was called as "soon as practicable after the passage of the Act." See Section 7, Chapter 6456, supra. There were evidently no funds in hand at that time, to pay for postage, clerical help, officeexpenses, costs of meetings, nor experts to prepare the tax lists nor for publishing notices, etc. There is nothing in the Act to manifest any intent that there be funds in hand for these or other purposes, in advance of the performance of the duties required of the board of commissioners, in the preparation, publication, etc., of the tax lists.
It appears to have been the intention of the lawmakers that if funds were necessary to take care of any of these *Page 574 preliminary steps for getting the acreage taxes properly on the tax rolls, they could be raised through temporary loans. Section 18 of Chapter 6456, supra, provided as follows:
"The said board is hereby authorized and empowered in orderto provide for the work described in this Act, to be performed,to borrow money temporarily from time to time for a period notexceeding one year at any one time and to issue its promissorynotes therefor," etc. (Italics supplied.)
This same provision is brought forward as Section 1177, Revised General Statutes of Florida.
Section 6, of Chapter 6456, the Everglades Drainage District Act, provides that among other uses to be made of the acreage tax levied by the Act, the board might use it "to purchase lands or personal property as the board may deem necessary to carry out the purposes of this Act, and to the expenses of theboard in the conduct of said work and its business generallyand to repay any loans and the interest thereon," etc.
In other words, while there were no funds on hand for the starting of the machinery of the Everglades Drainage District, the Board of Commissioners of Everglades Drainage District were given a credit, by being empowered to borrow moneytemporarily, for emergencies, so to speak, and these loans were backed by, and to be repaid from, the proceeds of acreage taxes collected after the preparation of tax lists, the entry thereof on the tax roll of the several counties and the taxes collected.
These provisions for "temporary loans," for the payment thereof, and for the payment of the general expense of the board of commissioners, from the taxes, are still in effect. See Sections 1165 and 1177, Revised General Statutes of Florida, Sections 1535 and 1552, Compiled General Laws of *Page 575 Florida. In addition to these provisions for the making and of payment of "temporary loans," and for the payment of general expenses of the board in administering the affairs of the district, there has been another enactment, viz: Chapter 8412, Acts of 1921, where there is levied on all real and personal property in the district an ad valorem tax of one mill on each one dollar valuation, to be known as a "maintenance tax" and used for maintenance, repairs, upkeep and any other general andnecessary purpose of the district.
The answer and return of the respondents allege that the board of commissioners have "no funds available" with which to meet and pay the expense of listing the property for drainage taxes, and that the board is therefore unable to prepare tax lists or to have them published as required by Section 1167, or any other Act, etc. This is, in our opinion, a conclusion of fact. There is no allegation that the board of commissioners, or the Everglades Drainage District, has no credit, or that the respondents have made any effort to execute their authority to borrow on temporary loans, funds alleged to be necessary for the performance of the commands of the alternative writ. There is no allegation that the board has been refused a temporary loan for such purpose. There is no allegation that the proceeds of the one-mill ad valorem tax for the year 1932, which it appears was assessed and presumably is being collected, are not available to pay the alleged necessary items of expense. There is no allegation in the answer and return that any effort has been made or is being made by the board of commissioners to segregate or to have segregated the proceeds of the one-mill advalorem tax alleged to be included in the $68,375.86 alleged to have been ordered paid by the Treasurer on the Rorick judgment. It was practically admitted *Page 576 at the hearing, on oral argument, that proceeds of the one-mill maintenance tax, provided for in Chapter 8412, Laws of Florida, are included in the amount above mentioned. Funds arising, or that may arise, out of the proceeds of the "maintenance tax" provided for in Chapter 8412, Laws of Florida, 1921, are available for use in paying such items of expense as the respondents claim will be incurred in preparing the tax lists, and that will result from their preparation. In our opinion, the board of commissioners can and should ascertain the amount arising from the one-mill maintenance tax now held by the State Treasurer as custodian of the funds of the Everglades Drainage District. Even if the law contemplates that the expenses and charges set forth by the respondents, as necessary to be paid are in hand before they are required to prepare the tax list, there is no allegation that the board has even drawn a warrant on the Treasurer for any such expense items. Nor is there any allegation that payment of any such warrant for any such expense has been refused. The mere fact that the State Treasurer, as custodian of the funds of the Everglades Drainage District, declines generally to honor warrants, and hasdeclined to disburse any money for administration ormaintenance of the district, or for the payment of anyobligation other than bonds or the interest thereon, does not justify the board in simply quitting, as it were. There is no allegation that any effort was made before this mandamus proceeding, or since, to have the State Treasurer honor warrants for funds alleged by respondents to be necessary to enable them to function as required in Section 1167, Revised General Statutes, supra.
There is no allegation that any stationery company, prior to the issuance of the alternative writ of mandamus herein, refused to sell the board sufficient paper, pencils and other *Page 577 materials necessary for making the tax lists. There is no allegation that any effort was, or has been, made to secure clerical assistance in preparing the lists, and such help refused, because funds to compensate such help were not immediately available. The respondents fail to allege that any newspaper in either Tallahassee or Miami, refused to publish "notices of the completion of the tax lists," because of the lack of funds in hand to pay for the same. There is, in our opinion, no merit in the contention that the respondents had or have no funds to pay the tax assessors of the several counties for extending the drainage taxes on the tax rolls of such counties.
In the first place, the law does not provide that the tax assessors shall be paid in advance. In fact, their compensation cannot be determined until after the tax rolls are completed. In Section 1174, Revised General Statutes, Section 1545, Compiled General Laws, it is provided as follows: "The tax assessor shall receive as compensation for the duties required of him by the provisions of this Article a commission of one per cent upon the amount of drainage taxes assessed within the respective county, except errors." (Italics ours.) There is no provision as to exactly when this compensation is to be paid, but it is clearly after the tax assessors have completed their work. If Chapter 14717 should be considered, regarding the compensations of the tax assessors, it provides the same as Section 1174, Revised General Statutes, supra, with this additional provision: "Upon the completion of the tax roll for each year the board shall pay to the tax assessor an amount equal to eighty per centum of the total compensation which shall be on the face of the tax roll, earned by him," etc. We think, however, that Section 1174, Revised General Statutes, must govern in compensating the assessors, for making the extensions under *Page 578 Section 1167, Revised General Statutes, which we have held must be followed in making the assessments herein sought.
In the second place, regarding the defense set up by the respondents, Board of Commissioners of Everglades Drainage District, that they have no funds to pay the assessors, we say it is without merit for the reason there is no allegation that the tax assessors will not do the work unless the funds are immediately available. In fact, the tax assessors of the respective counties are respondents in this very proceeding, and neither of them has set forth in the answer or return that there are no funds in hand or available to compensate him for his work, and that for such reason he declines to receive any tax list prepared by the board of commissioners and enter the drainage tax therein contained on the tax roll of his county.
Let us again refer to Section 1167, Revised General Statutes, Section 1537, Compiled General Laws, and observe its provisions to see if the answer of the respondents in the instant case, have set out in detail all the facts necessary to sustain the avoidance claimed in such return. This section provides that: "On the second Tuesday in January of each year, the saidboard shall prepare for each county in which said district may lie, in whole or in part, a list of the lands lying in such county and embraced in said drainage district * * * and upon such list or lists shall be designated the amount assessed by this Article upon each section of land or part thereof, for the year in which such list or lists are made. Immediately upon the preparation of such lists the board shall cause to be published in a newspaper published in Tallahassee and in a newspaper published in Miami, once each week for two weeks, a notice ofthe completion of such lists, and that the same can be examined at the office of the said board, and that on a day to be specified *Page 579 in said notice * * * the board shall meet at the office of said board and hear and determine all complaints in relation to the preparation of such lists by the said board," etc.
It will be observed that the board has simply to prepare lists of lands embraced in the Everglades Drainage District lying in each county and insert the amount of drainage tax per acre, fixed by the Legislature.
There is nothing said in this statute about publishing the lists in the respective newspaper. They are simply to publish a notice in the two papers that the lists have been completed, and where they may be examined, and when interested parties may make complaints. There is nothing in this statute providing that notices shall be mailed to the land owners, that the lists have been made and when and where complaints will be heard and determined by the board, as the respondents claim in their answer they will be required to do. While the members of the Board serve without compensation being provided, it would seem that even if unable to secure clerical assistance they are required to prepare these lists under the provisions of the statute.
The preparation of these drainage tax lists by the Board of Commissioners of Everglades Drainage District, is a matter of vital importance to the drainage program. Unless the board functions as provided by the law, the taxes levied and assessed by the provisions of the drainage Acts, cannot be collected. The entire drainage system in the Everglades Drainage District would collapse. Millions of dollars already spent for drainage purposes will have been lost, through the resultant waste and deterioration of the drainage system already finished. The bonded indebtedness of the district would have to be repudiated to the great detriment of the credit and good name not only of the district but of the State of Florida. We find nothing in the law that *Page 580 shows any intent on the part of the lawmakers that, unless funds are in hand to pay for the materials, clerical work and publishing of notices, expense of meeting of the board, and the compensation of the tax assessors, the board of commissioners need not perform the duties clearly and explicitly imposed by the provisions of Section 1167, Revised General Statutes of Florida. It is our opinion that such a thing was never contemplated by the legislators.
Let us suppose a situation arising in any one or more of the counties of this State, where the budget for paying the mileage and per diem of the members of the board of county commissioners has been exhausted. There are no funds in the budget to pay for the publication of the necessary notice of the meeting to hear complaints, and to equalize the assessment, or to advise taxpayers whose assessments were raised. And furthermore that there were no funds in the budget or depository of the county to pay the tax assessor for assessing the taxes, and that because of this situation the board of county commissioners of such county or counties determines not to function in meeting to equalize the taxes, or to make any levy of taxes, for county purposes. Would such failure or refusal upon the part of such a board of county commissioners be legal or permissible? We think not. While the funds may not be immediately available to meet and pay these items, funds will be available from the tax required to be levied and assessed.
It is doubtful if many of the counties in the State of Florida have in any year funds in their depositories to pay the necessary expenses, fees and charges for the assessment, levy and equalization of the taxes, and preparation of the tax rolls for the ensuing year. Probably many boards of county commissioners in Florida could file returns to alternative writs of mandamus similar to the return in the *Page 581 case at bar, setting up inability on account of no available funds, in proceedings brought to require them to function in meeting the requirement for the legal assessment of the county taxes. Then, too, as we have already said, even if it is necessary to have the funds immediately available to meet the items mentioned by the respondents, they fail to allege any effort to have any of the necessary work done. Nor have they alleged any demand for any employee, official or newspaper for compensation in advance or assurance of funds in hand for such compensation, nor any refusal of any one approached to do any work or perform any act or duty unless the funds for paying for such services was in hand.
"In a mandamus proceeding to compel the publication of a proposed constitutional amendment by the Secretary of the Commonwealth as required by the Constitution, it is no defense that no appropriation of moneys to defray the cost of publication has been made, where it is not shown that anynewspaper has refused to make the publication without being paid." (Italics supplied.) Commonwealth of Pennsylvania, ex re. Elkins, Atty. Gen., v. Griest, 196 Pa. 396, 46 Atl. Rep. 505, 50 L. R. A. 568.
The Pennsylvania Court in the case just quoted from, in 50 L. R. A., page 575, text, says the following:
"Two other questions arose upon the hearing in the court below, and they are brought before us by the appeal. The first of them is that, as no appropriation was made of moneys from the public treasury to defray the cost of publication in the newspapers, the Secretary of the Commonwealth could not lawfully make the publication. We do not consider that this question is of any serious force, because, in the first place,it does not appear, and is not averred, that any newspapershave refused to make the *Page 582 publication without being paid or secured for the cost, or eventhat any of them have been asked to make the publication.
"The Secretary is not, therefore, able to say that hecannot make the publication for the reason stated, and hencesuch inability cannot be set up as a bar to the enforcement ofthe Act proposing the amendments. It was at least his duty to try to make the publication before he could be heard to say that it cannot be done. But in the next place the mandate of the Constitution is upon him and he must obey it in terms. If it is utterly impossible for him to obey it literally, he canmake that clear to the Court, stating the reasons; and then it would be for the Court to determine in a proper proceeding, whether the publication can be made or not." (Italics supplied.)
Another rather pertinent expression of the Supreme Court of Pennsylvania found on the same page, from which we have just quoted, is the following:
"In the third place, it is not to be assumed that the State will not pay, or cannot be caused to pay by judicial decree, the necessary cost of carrying out a peremptory order which has been officially promulgated by the State Legislature in strict conformity with the requirements of the State Constitution."
The respondents in both paragraphs 22 and 23 of their answer and return, lay much stress upon the injunction proceedings in the Federal Court, in which the State Treasurer, W. V. Knott, as custodian of the funds, etc., of Everglades Drainage District, was restrained from paying out any moneys save for bonds and the interest thereon. This injunction proceeding cannot, and does not, bar the relators in this cause, from securing a writ of mandamus, which may require the Board of Commissioners of Everglades *Page 583 Drainage District to demand funds in the custody of the Treasurer to be rightfully used under the provisions of law. These relators were not parties to the equity proceedings in the Federal Court. Even if this was a proceeding against W. V. Knott, State Treasurer, to coerce him to pay out funds, contrary to the injunction order, the fact of the injunction would not be a valid defense to the mandamus proceeding. On page 141, 18 R. C. L., the writer, concerning the issuance of a writ of mandamus against an officer who is under injunction, says the following:
"The question has arisen in a number of cases as to the effect of the fact that the officer whose action is sought to be coerced by mandamus is under an injunction restraining him from doing the particular act. In such a case it is self evident that if the applicant for the mandate was a party or privy to the injunction suit his right to have the act performed must necessarily have arisen and been adjudicated in such suit, and his right to have the act performed would therefore be res adjudicata, and could not, so long as the decision remains unreversed, be reopened in a mandamus proceeding, and also if he should obtain a mandate against the injunction he would be guilty of contempt and answerable therefor in the court of equity. Where, however, the applicantfor the mandate was not a party or privy to the injunctionsuit, the decree of the court cannot conclude him, and according to the better view the fact of the existence of the injunction will not preclude the issuance of a mandaterequiring the officer to perform the act enjoined. In such a case the officer cannot be embarrassed by this, because the act of the law, as well as the act of of God, can always be pleaded in excuse for non-compliance with the injunction. The mandamus would be an act of *Page 584 the law, which could thus be pleaded by the officer in excuse of not obeying the injunction, and such an excuse would undoubtedly be accepted by the chancery court. This is so not because the court issuing the mandate has any superiority over that court, but from the nature and circumstances of the case, and particularly from the fact that the applicant for the mandate was not a party to the equity suit." (Italics supplied.)
There is no allegation that the one-mill ad valorem tax derived from the annual levy provided for in Chapter 8412, Laws of Florida, Acts of 1921, does not produce revenue sufficient to adequately pay all expenses and other compensations required in the preparation of and resulting from the making and filing of the tax lists.
In the amendment of paragraph 22, quoted above, there was attached a copy of certain resolutions adopted by the Board of Commissioners of Everglades Drainage District, on July 18, 1932. It does not state that the one-mill tax is not sufficient for paying the expenses of the preparation of the lists for drainage taxes, but that it is not adequate to operate and maintain the works of drainage and reclamation.
There are no other or new facts found in this copy of resolutions than already alleged in the body of the answer and return to the writ. These resolutions are in the nature of the "Swan Song" of the board of commissioners, and of the Everglades Drainage District. It provides for the release of all employees by the board. It reaffirms the liability of the board and of the district for the payment of all legal obligations. It "reaffirms" its willingness to co-operate with every bondholder of Everglades Drainage District to the end that the said bonds, principal and interest, may be fully paid. It reaffirms as a fact that the Bondholders' Protective Committee has failed and refused, and persists in *Page 585 failing and refusing, to co-operate with the board or to pursue a course which will render possible the ultimate payment of the obligations of the district. It states that the "Board believes that a cessation of activities with respect to the keeping of records and the maintenance and operating of reclamation works which has been made necessary by the failure of the said Bondholders' Protective Committee to accept the offer of co-operation repeatedly tendered by this board, is not for the best interest of the creditors of the district and its taxpayers." Another one of the resolutions continues the secretary of the board without compensation, he having expressed, according to the resolution, a willingness to do so. The eighth of these resolutions is as follows: "That this board finds itself unable because of the matter set forth in the preamble of this resolution, to prepare its tax rolls for the year 1932, such inability arising by reason of the fact that the board has no funds to pay the costs of completing such tax rolls or to pay the costs of advertising the notices of hearing required by law, or to pay the tax assessors for extending such taxes upon the tax rolls."
The recitation in the preamble of these resolutions set forth no fact different from those alleged in the return proper, except that the board has undertaken to have negotiations with the Bondholders' Protective Committee, looking toward an adjustment of matters and arranging some plan for ultimate payment of the bonds. As we have already stated, these resolutions do not supply any of the deficiencies in the allegations of fact found in the answer and return. These resolutions were adopted some six months after the tax lists for 1932 should have been prepared under the law. The fact that efforts to adjust the differences between the board and the Bondholders' Protective Committee did not *Page 586 warrant the Board of Everglades Drainage District in refusing or failing to even make an effort to "carry on" to the extent at least of performing its duty in taking the essential steps to make possible the entry of drainage tax on the tax rolls, and give power to the tax collector to collect same.
It would seem from paragraph XII of the answer and return that the alleged inability of the board of commissioners was not the only reason for the respondents' failure to comply with the commands of the alternative writ. It appears that even if funds were available the respondents would still have declined to obey the mandate of the writ. This is shown quite plainly in the following allegations found in paragraph XII:
"Further answering, respondents say that they have not levied taxes for the year 1932 on account of inability so to do as hereinafter alleged, but that had they the ability so to dothey would not levy taxes under the provisions of Chapter 6456,Acts of 1913, and its amendments for that the same is not nowthe law of Florida, in that the same was repealed by Chapter 14717, Acts of 1931, etc."
This Court had, at the time of the filing of this return, decided, and it was the law in this case when the answer was filed, that the provisions for the levy, etc., of the drainage taxes, under the provisions of Chapter 6456 were not repealed insofar as the rights of the relators as holders of bonds issued and purchased prior to the alleged repeal, were concerned. It would seem therefore that the alleged inability was not in itself that which prevented the board from obeying the writ.
As we have said, the answer and return as a whole is one of confession and avoidance. The failure of the board of commissioners to perform the acts which it is sought to *Page 587 have them perform is admitted or confessed. From the observations we have made regarding the allegations seeking to establish avoidance, it will be seen that we consider them insufficient to bar the issuance of a peremptory writ. The demurrers, both general and special, to the answer and return of the respondents to the alternative writ of mandamus are sustained.
WHITFIELD, ELLIS, TERRELL and BROWN, J. J., and JOHN U. BIRD, Circuit Judge, concur.
DAVIS, C. J., and BUFORD, J., disqualified.
OPINION FILED FEBRUARY 3, 1934.