I concur in the view expressed in the per curiam opinion prepared pursuant to hearing on petition for rehearing, but I also think our opinions filed February 23, 1940, should be modified further. In the opinion in the Taylor case we said:
"In the issuing of bonds to be paid by taxation, the official duties of the county commissioners include the administrative function of providing directly for the printing, approval and other legal or fiscal matters not including mere technical or ministerial services which may be performed by employees. As shown by the resolutions adopted August 7, 1939, by the county commissioners, the contract of August 7, 1939, states that R. E. Crummer Company, 'first party' is 'a Delaware Corporation,' and the county commissioners, 'second party.' As stated in the agreement of August 6, 1935, R. E. Crummer Company 'represents the holders of a substantial portion of the outstanding bonds of Lake County.' The law does not contemplate or permit the appointment of a foreign corporation representing "the *Page 567 holders of a substantial portion of the outstanding bonds' as fiscal agent for the county or districts in managing or controlling any of the official functions involved in the issuing of refunding bonds. The contract of August 7, 1939, provides:
" 'That first party (R. E. Crummer Company) shall defray all expenses incident to: (a) assembling and exchanging the bonds herein proposed to be refunded; (b) printing the said refunding bonds; (c) the representation of Second Party (the county commissioners) in legal proceedings to validate said refunding bonds; (d) obtaining the approving opinion of nationally recognized bond counsel upon the procedure used for the issuance and validation of said Refunding Bonds, said counsel to be selected by First party; (e) all other expenses in connection herewith which may be approved by First Party."
"Nor does the law permit the payment of money from the sinking funds of the county or districts as fees for a refunding agent. Pierce v. Isaac, 135 Fla. 101, 184 So. 669. When such an agent may legally be employed for services in nowise official in their nature, proper compensation for such service may be provided for as the law authorizes."
A careful analysis of the contract of August 7, 1939, referred to in the opinion, supra, discloses that we misconstrued the import of the quoted provision of the contract. By the terms of the contract the fiscal agent does not undertake to perform the official duties of the county commissioners but only undertakes to "defray the expense" required to be incurred by the taxing unit in connection with the accomplishment of those several things which the county commissioners must do to consummate the plan. No authority is hereby attempted to be vested in the fiscal *Page 568 agent to "manage or control any of the official functions of the board of county commissioners. The fiscal agent was required by the terms of the contract to defray certain expenses incident to the consummation of the refunding program. The only matters in which the fiscal agent was authorized to exercise control was in the selection of "nationally recognized bond counsel" to render an opinion on the validity of the bonds. This is a matter as to which the bond buyer generally exercises the privilege of dictating to the issuing authority. The fiscal agent took all the risk of successfully consummating the refunding plan because under the contract the county was not obligated to reimburse the fiscal agent for any expenditures until the successful termination of the plan and only then and from a fund to be produced for that purpose.
The provision contained in the contract for reimbursement of expenditures, and for compensation for services to be rendered in the performance thereof, is as follows:
"Section 10. That First Party shall be reimbursed and compensated for expenses incurred and services rendered, respectively, in connection herewith in the following manner: By Second party paying to First party, or its assignee, a sum equal to two (2%) per cent on the par value of bonds exchanged hereunder, the amount due to be evidenced by certificates issued to First party by the Clerk of the Board of County Commissioners of Second party setting forth the bonds exchanged and amount due, which certificate the said Clerk is authorized and directed to issue by the execution of this contract. Said certificate shall be paid out of the interest and sinking fund of the issuing units out of funds available each six months after interest then due has been paid, or out of any other funds legally applicable thereto." *Page 569
Such a contract as this, with but slight difference, was held valid by this Court in the case of Pierce, et al., v. Isaac,134 Fla. 666, 184 So. 509. That contract was held valid necessarily on the theory that the expense incident to refunding a bond issue is a necessary incident to the handling and consummating of such matters. It is an incident expense to the consummation of any bond refunding plan and it is immaterial whether the expense so incident be paid from some available fund on hand, or be advanced to the taxing unit undertaking to issue bonds to be repaid by the unit when a fund available for that purpose is accumulated.
It also must be recognized that it is a matter of common knowledge that where a taxing unit is in default in meeting its bond and interest obligations and finds it advisable to refund, some fiscal agent must in most cases be employed because the taxing unit is (a) without facilities to locate the bondholders and bring them to a frame of mind to surrender their bonds and take a bond bearing less interest and having a less favorable maturity; (b) is without facilities to bring the bonds into one central control and (c) is without available funds with which to pay the preliminary expense incident to the attempted issuance of such refunding bonds. These are the burdens which the fiscal agent assumes.
The expense being an incident to a readjustment of the debt evidenced by the original bonds and to be evidenced by the refunding bonds, it is just and equitable and logically legal that the fund with which to pay such incidental expense should come from the identical source from which is to come the funds with which to discharge the debt and the interest as it accrues on the debt.
So it is that the taxing unit having the power to levy *Page 570 taxes to pay the debt according to the terms of the readjustment may levy the necessary tax on the same tax resources to pay this incidental expense of readjustment. This, however, must be done by proper resolution adopted in connection with the issuance of the involved bonds and may not be paid from a fund provided by resolution levied, assessed and collected for or duly appropriated to another purpose. See Pierce, et al., v. Isaac, 135 Fla. 101, 184 So. 669, where we held:
"Where resolution authorizing issuance of highway refunding bonds provided that the improvement district's money with the State Board of Administration should be used as required by law to retire bonds, such bonds could be used only for the purpose contemplated by the resolution, and not for payment of fees of fiscal agents for their activities in refunding.
"A temporary order restraining improvement district from delivering highway refunding bonds to any bidder or purchaser, except such an amount as could not be paid off or retired by the use of funds on hand, and from directing or requesting the State Board of Administration to pay any refunding fees to the district's fiscal agents, was not erroneous."
If the resolution authorizing the issuance of the bonds involved in the last mentioned case had provided among other things for the levy of a tax to produce a fund sufficient to create an adequate sinking fund to retire the bonds at maturity or on call, and to pay the interest as the same should become due and payable, and with which to pay the expense incident to the consummation of the refunding plan, we apprehend that such a resolution would have been held valid and the funds derived from the levy and collection *Page 571 of such tax available to be used for the purposes named in the resolution.
So it is that the contract of August 7, 1939, supra, contemplates the adoption of a resolution by the issuing authority in harmony with the provisions of the contract and if and when such a resolution is adopted and the tax is levied, assessed and collected in accordance therewith the fund thereby produced will be available for complying with the terms of the contract.
The contract involved in the first Isaac case, 134 Fla. 666,184 So. 509, was one between the issuing authority and a Florida corporation. In no material matter was it different from the contract here involved. Certainly, the fact that the contract here involved was with a foreign corporation authorized to do business in this State can have no controlling effect on its validity.
So it is the original opinion filed herein on February 23, 1940, should be clarified to conform to views expressed in theper curiam opinion, supra, and modified to conform to the views herein expressed and when so modified the petition for rehearing should be denied.
BROWN, J., concurs.