State Ex Rel. Sherrill v. Milam

153 So. 100, 113 Fla. 491

• Court: Supreme Court of Florida
• Decided: November 17, 1933
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On petition filed in this Court by the relators, October 1, 1932, an alternative writ of mandamus, issued, commanding the respondents, members of the Board of Commissioners of Everglades Drainage District, to forthwith comply with the provisions of Section 1167, Revised General Statutes of Florida, by meeting, as therein required, and making, certifying, and forwarding to the tax assessors of counties lying, in whole or in part, in said Everglades Drainage District, lists of the lands in each of said counties, within such district, subject to drainage tax for the year 1932. In fixing the amount of such drainage tax per acre, they were directed to apply the rate of acreage tax provided for in Chapter 10026, Laws of Florida, Act of 1925.

The respondents, tax assessors of the several counties, named in the said alternative writ, were commanded to receive the said lists prepared by the Board of Commissioners of Everglades Drainage District, for their respective counties, and to forthwith enter upon the tax rolls of such counties, the drainage tax assessments as shown on such lists for the year 1932, against the land therein described. Should the respondents fail to comply with the commands of said alternative writ, they and each of them were directed to show cause, on October 8, 1932, why they refused to do so.

On the return day, named in the alternative writ of mandamus, the respondents, members of the Board of Commissioners of Everglades Drainage District, filed a motion to quash the same. On the same day the respondents, tax assessors, severally made return to the alternative writ of mandamus, some of them filing motions to quash, others filing motions to strike, while others filed answers or other special returns, each setting up his reason for not complying with the command of the writ, by performing the acts therein required to be performed.

The question raised by the tax assessors in their several returns to the alternative writ of mandamus, is, the propriety, and legality of requiring such tax assessors to withhold the State and county tax assessment rolls, from the tax collectors, of their respective counties, pending the adjudication of the propositions involved in this proceeding. When oral arguments were heard in this cause, we made an order, so modifying the alternative writ of mandamus, as to permit the respondents, tax assessors, to deliver the State and county assessment rolls for the year 1932, to the tax collectors of the counties affected, on November 1st, as provided by the statute, reserving all other questions involved, for further consideration and determination. State ex rel. v. Everglades Drainage District,et al., 107 Fla. 91 144 So. 655.

Upon motion of the relators, at the hearing on oral argument, the alternative writ of mandamus was by leave of the Court, amended, by inserting another paragraph, designated as paragraph "4-a". All motions, answers and other special returns, made by the several respondents to the original, are considered as addressed to the alternative writ of mandamus as amended.

All the questions necessary to the determination of the propositions involved in the returns of the several respondents, are apparently raised in the motion to quash the alternative writ of mandamus as amended, filed by the respondents, members of the Board of Commissioners of Everglades Drainage District. In this motion to quash, the respondents question the sufficiency of the allegations of fact contained in both the alternative writ and the petition as amended, to have authorized the issuance of such alternative writ, and to warrant the granting of a peremptory writ of mandamus.

The allegations of the alternative writ of mandamus as amended, so fully and completely set forth the facts upon which the relators base their cause, as also the statutory enactments, which they assert authorize the relief sought on the facts alleged, we think it might be advisable, to quote these allegations in full, even though it may appear to render this opinion unreasonably long. We also think it would not be amiss to quote the grounds of the motion to quash, in order that the contentions of each of the parties may be made clearly to appear. However, we will only set out in this opinion the substance of each document pertinent to a full consideration of the questions involved.

After the allegations of the alternative writ of mandamus as amended, identifying the Everglades Drainage District as a statutory subdivision of the State of Florida for governmental purposes, the pertinent allegations are, in substance, as follows:

That by Chapter 6456, Laws of Florida, Acts of 1913, Everglades Drainage District was established and its boundaries defined, and provision made for its government by a Board of Commissioners, composed of five State officials, with certain powers including the power to construct and maintain a system of canals, ditches, etc., for the drainage of the lands embraced within the defined boundaries, and the power to borrow money and issue bonds therefor; that by Section 5 of the Act provision was made for the annual assessment of an acreage tax, and by Section 6 of the Act it was provided that the proceeds of such tax were to be used for the construction and maintenance of works, the purchase of necessary land and personal property; to the repayment of loans and the interest thereon; to the creation of a sinking fund for the retirement of the bonds that the Board might issue, and the payment of interest thereon; that Sections 8 and 9 of the Act defined the duties of the Board of Commissioners of Everglades Drainage District, and the tax assessors, with respect to the listing and assessing of the lands within the district for drainage tax; that by the provisions of Section 19 of the Act the Board of Commissioners were empowered to borrow money on permanent loans, and to issue and sell in the corporate name of the Board, negotiable bonds of the district in the aggregate amount of not exceeding $6,000,000.00; that by Section 20 of the Act the denominations of the bonds were fixed, and the rate of interest and place of payment were provided for; that by Section 21 the manner of the execution of the bonds, and certain recitations the bonds should include were fixed; that by Section 23 of the Act it was provided that said Act should, without reference to any other Act of the Legislature of Florida, be full authority for the issuance and sale of bonds provided for in the Act, and that in said Section 23 there was also a provision as follows: "The provisions of this Act shall constitute an irrepealable contract between the said Board and said Everglades Drainage District, and the holders of any bonds and the coupons thereof issued pursuant to the provisions hereof. Any holders of any of said bonds or coupons may either in law or in equity, by suit action or mandamus, enforce and compel the performance of the duties required by this Act in relation to the said bonds, or to the collection, enforcement and application of the taxes for the payment thereof," which quoted provision, it is alleged, is still in full force and effect in respect to all outstanding bonds of the said Everglades Drainage District; that under the provisions of Section 24 of the Act provision is made that the State Treasurer as custodian of the funds belonging to the Board of Commissioners of Everglades Drainage District, out of the proceeds of the taxes levied and imposed by the Act, and out of any other moneys in his possession belonging to the Board of drainage district, so far as necessary to set apart and appropriate for the purpose, to apply such moneys to pay the interest on the bonds as the same fell due, and at the maturity of said bonds to pay the principal thereof out of said money, "and that there shall be and there is hereby created a sinking fund for the payment of the principal of said bonds, and the said Board shall set apart and pay into said sinking fund annually out of the taxes imposed and levied by this Act and other revenue funds of the said district, at least two per cent. of the amount of the bonds outstanding. The sinking fund for the payment of the principal of said bonds shall not be appropriated to any other purpose than that herein specified"; that no bonds were issued by the Board of Commissioners of Everglades Drainage District under the provisions of Section 19 of the Act until after an amendment thereof by Section 10 of Chapter 6954, Laws of Florida, Acts of 1915, which provided that the amount of bonds issued and outstanding under the Act should not at any time exceed $3,500,000.00 principal, with the added provision that nothing contained in such amended Section 19, should be a limitation upon the right of the Legislature to authorize additional bonds of said Board payable from drainage tax within the district, if at the time of such authorization by the Legislature, additional tax was provided sufficient for the payment of the interest and retirement of the principal of such additional bonds.

Reference is made to the said Chapter 6456, and to the Act as modified with all prior amendments, as found in Section 1160 to 1188, inclusive, of the Revised General Statutes of Florida, and asked to be considered as fully as if incorporated in the alternative writ of mandamus as amended. That Section 19 of Chapter 6456 was amended by Chapter 7862, Acts of 1919, as amended by Chapter 6957, Acts of 1915, and by Chapter 8413, Laws of Florida, Acts of 1921, providing in each instance authority for issuance of additional bonds; that said Section 19, Chapter 6456, as amended, was codified as Section 1178 of Revised General Statutes of Florida, and was amended by Chapter 9119, Laws of Florida, Acts of 1923, so as to authorize the Board of Commissioners to issue and have outstanding bonds to an amount of not exceeding $11,500,000.00, being $3,500,000.00 over and above the amount of bonds authorized under the provisions of Chapter 8413, Acts of 1923.

That Section 20 of Chapter 6456, Acts of 1913, providing for the denomination of bonds, the rate of interest, and the place of payment, as amended by Chapter 7305, Laws of Florida, Acts of 1917, was codified as Section 1179 of the Revised Statutes of Florida, which was amended by Section 1 of Chapter 10027, Laws of Florida, 1925, the same including a provision authorizing the Board of Commissioners, if for any reason they deemed it advisable, "to refund any of the bonds issued under the provisions of this Article or the interest thereon," to borrow money and issue coupon bonds of said Everglades Drainage District, in an amount sufficient to meet such bond and coupon indebtedness. The said refunding bonds to be issued in such denominations, bear interest rate, and mature at such time, not exceeding thirty years from the date of issue, as said board might determine, and in all other respects such bonds shall in the manner of issuance and sale be subject to the provisions of this Article." And with further provision that, "All refunding bonds issued under authority hereof shall constitute an obligation of equal dignity with any and all other bonds heretofore, or that may hereafter be, issued against and by said district."

That under the provisions of Chapter 6456, Acts of 1913, with the amendments and the codification thereof, as Section 1178, Revised General Statutes, and subsequent amendments thereof, there are issued and outstanding bonds aggregating $9,919,000.00, and that each of said bonds so issued and outstanding is payable to bearer and each sold to bona fide purchasers for value; that each of the refunding bonds was in the denomination of one thousand dollars, and bore interest at the rate of five per cent. per annum, payable semi-annually, and that each refunding bond recited that it was issued for the purpose of refunding certain valid existing and outstanding indebtedness of the said district, under and pursuant to and in full compliance with the Constitution of the State of Florida and statutes of the State, including among others Chapter 10027, Acts of 1925, and in pursuance of resolutions and proceedings of the Board of Commissioners of Everglades Drainage District, duly had and adopted.

That each issue of the bonds now outstanding, including the issue of refunding bonds on July 1, 1925, was made pursuant to a resolution, including a provision in language as follows, to-wit:

"BE IT RESOLVED, That there shall be and is hereby created a sinking fund for the payment of the principal of the said bonds, and the Board does hereby set apart and direct to be paid into such sinking fund annually, out of the taxes levied and imposed in said district, and the other revenues and funds of this district, not less than two per cent. of the amount of bonds outstanding, and in and for each of the years during which said bonds shall mature there shall in addition be paid into the sinking fund, in time to reasonably pay the principal of said bonds after they mature, the amount of bonds maturing in such year. The said sinking fund for the payment of the principal of said bonds, shall not be appropriated for any other purpose than that herein specified."

That said sinking fund has not been maintained, and that $1,056,715.00 of interest is in default and unpaid, and that $501,000.00 of principal is in default and unpaid, and that in addition thereto $50,000.00 of principal and $253,737.50 of interest will be due January 1, 1933, and $249,000.00 of principal, and $252,547.50 of interest will be due July 1, 1933.

That there is not in the hands of the State Treasurer sufficient moneys, including moneys in the sinking fund, to pay the amount of a judgment recovered on March 28, 1932, in the District Court of the United, Northern District of Florida, against said district, by H. C. Rorick and others for the sum of $184,349.00.

That by Chapter 10026, Laws of Florida, Acts of 1925, Section 1178, Revised General Statutes, was further amended, so as to authorize said Board and district to have outstanding at any time bonds not to exceed the sum of $14,250,000.00; that no additional bonds were issued under such authorization, but refunding bonds were issued and are outstanding, under the provisions of Chapter 10027, Acts of 1925, amending Section 1179, Revised General Statutes, which was a codification of Section 20, of Chapter 6456, Acts of 1913, as amended; that all the outstanding bonds, including the refunding bonds, were issued under the authority of, and entitled to the full protection of said Chapter 6456 of the Acts of 1915, and its amendments.

That by Section 5 of Chapter 6456, Acts of 1915, as from time to time amended, and subsequently codified as in Section 1164 of Revised General Statutes of Florida, and as amended from time to time, certain acreage taxes were levied on the lands in the district, which by Section 24 of said Chapter 6456, now codified as Section 1183, Revised General Statutes, were appropriated to the payment of interest on the said bonds, and the principal of bonds at the maturity thereof, requiring the State Treasurer as the custodian of the money to apply the same to the payment of such interest and principal.

That refunding bonds were issued, under the authority of Chapter 10027, Acts of 1925, and are outstanding, some of which each of the relators is a holder for value, and which are, by the provisions of the law, made of equal dignity with all other bonds issued by the district.

The alternative writ as amended sets forth in detail a comparison of the acreage tax rate fixed by Chapter 9119, Laws of Florida, Acts of 1923, and the tax rate authorized by Chapter 10026, Laws of Florida, Acts of 1913, showing a substantial increase under the provisions of the latter Act. It then proceeds to further allege, that by reason of the fact that the outstanding refunding bonds dated July 1, 1925, and issued under the provisions of Chapter 10027, Acts of 1923, were of equal dignity with all other bonds of Everglades Drainage District, and by reason of the fact that at the time of the issuance of said refunding bond on July 1, 1925, the rate of acreage taxes from which the same were entitled to be paid, was defined in Chapter 10026, Acts of 1925, and that the holders of such outstanding refunding bonds and of the other outstanding bonds of the district were and are entitled to the levy and assessment of the taxes against the lands in said drainage district, as defined in said Chapter 10026.

That notwithstanding the provisions of Section 1167 of Revised General Statutes, the Board of Commissioners of Everglades Drainage District have not for the year 1932 prepared for any of the counties lying in whole or in part in said district, a list of the lands lying in such county and embraced in such district, designating upon such list or lists the amount of acreage tax assessed and levied, by Chapter 10026, or any other Act, against the various parcels of land in said district, nor have they prepared a list, and published notice as required by said law, nor have they certified and forwarded such list to the tax assessors of the several counties, that by reason of such default by the Board of Commissioners, the tax assessors of the several counties have not entered upon the tax rolls of their respective counties for the year 1932, any list of the lands of said district with the taxes levied and assessed against the same, at the rates specified in said Chapter 10026 or any other Act, and that therefore no acreage taxes will be assessed against the lands of the district for the year 1932, as required under the provisions of the law, unless the said Board of Commissioners are required and compelled by mandamus to prepare the lists of land as required by Section 1167 of the Revised General Statutes of Florida, and perform the other duties therein required; and the tax assessors required to enter the same upon the tax rolls of the respective counties as required by 1168, Revised General Statutes of Florida.

That by Chapter 13633, Acts of 1929, the personnel of the Board of Commissioners of Everglades Drainage District was increased by the addition of five persons to be appointed by the Governor, who should be land owners within the district, and that by Chapter 14714, Acts of 1931, the personnel of the Board was further changed so as to have it composed only of five persons, land owners in the district, to be appointed by the Governor. The writ also setting forth the names of the respondents herein, as the appointees to said Board by the Governor.

That said Chapter 13633, Acts of 1929, undertook to levy, in lieu of all other acreage taxes or assessments on the lands of said district, certain acreage taxes for 1929 and subsequent years, at rates defined in Section 6 of the Act, which provided there should be deducted from the amount of such taxes provided for on each acre of land within the district for each year, an amount equal to the sum levied for such year upon such land, as an acreage tax under Chapter 13711, Acts of 1929, providing for the creation of Okeechobee Flood Control District; that in addition thereto, it was provided that the Board of Commissioners of Everglades Drainage District should have the right to reduce the taxes levied in each zone of the district, defined in the Act, to the extent of not more than twenty-five per cent.; that such acreage taxes provided for in Chapter 13633 were less than the acreage taxes provided for in either of Chapter 9119, Acts of 1923, or Chapter 10026, Acts of 1925, and that said Chapter 13633, Acts of 1929, as to the rate of acreage tax therein specified, is unconstitutional and void as to each and every of the holders of the outstanding bonds of Everglades Drainage District, both refunding and original, because it impairs the obligation of the contract of such bond in violation of the Constitution of the United States, by undertaking to reduce the rate of taxation fixed and in force at the time of the issuance of such outstanding bonds both refunding and original.

That by the provisions of Chapter 14717, Acts of 1931, the Legislature of Florida, undertook to levy a Debt Service Tax as defined in Section 7 of the Act, for the purpose of enabling the Board of Commissioners of Everglades Drainage District to pay the principal and interest of all outstanding obligations of the district, the said Debt Service Tax being less than the amount of acreage taxes provided for by Chapter 10026, Acts of 1925, in force when the outstanding refunding bonds were issued. That said Chapter 14717, Acts of 1931, in respect to the amount of acreage tax is void and of no effect against the holders of outstanding bonds of the district issued prior to the enactment, because it impairs the obligations of the contract of said bondholders, in violation of the Constitution of the United States.

That no payments have been made upon either principal or interest of the outstanding bonds of the district since July 1, 1930; that all interest on said bonds accruing since that date is past due and in default, and that the State Treasurer has not in his hands funds sufficient to pay the same, nor are the funds in the sinking funds of the district sufficient to pay past due principal and interest of said district bonds.

That the only means of payment of the bonds of said district is the taxes levied under Chapter 6456, Acts of 1913, and its amendments, and the appropriations made by the provisions of Section 1183, Revised General Statutes, being Section 24 of said Chapter 6456, Acts of 1913. That unless the assessment of acreage taxes for the year 1932 is made, as required by law, so that the same may be collected by the tax collectors of the various counties lying in whole or in part in the district, the holders of the outstanding bonds of the district will be deprived of the payment of the interest on, and the principal of, said bonds as they mature.

That the petitioner, J. H. Sherrill, is the holder in due course for value, of seventeen of the refunding bonds issued by said district of the aggregate par value of $17,000.00 bearing interest at five per cent. per annum payable semiannually as evidenced by coupons attached, fifteen of said bonds maturing July 1, 1949, and two maturing July 1, 1951, and that he is also holder of interest coupons on said bonds, due January 1, 1932, and July 1, 1932.

That the petitioner, D. A. Vann, is the holder in due course for value of eight of the refunding bonds of the said district, each for the sum of One Thousand Dollars, due and payable July 1, 1949, and bearing interest at the rate of five per cent. per annum payable semi-annually, evidenced by coupons attached, and that he is the holder of past due interest coupons on each of said bands.

That the listing of the lands by the Board of Commissioners of Everglades Drainage District, and the forwarding thereof to the tax assessors of the several counties as required by 1167 of Revised General Statutes, and the extension of such lists on the tax rolls of such counties by the tax assessors thereof, as required by Section 1168, for the year 1932, is essential to the collection of the acreage tax for such year, to which petitioners and other bond holders have the right to look for the payment of their bonds and coupons.

The questions raised by the motion to quash may be summarized as follows:

That Chapter 14717, Laws of Florida, Acts of 1931, defines the duty of the Board of Commissioners of Everglades Drainage District as to the assessing of acreage tax, and it is not shown in the alternative writ, that the statute is void.

That it affirmatively appears from the alternative writ that the relators are not entitled to have taxes assessed at the rate fixed by Chapter 10026, Laws of Florida, Acts of 1925.

That upon the face of the alternative writ, the relators are not entitled to have the command of the writ enforced as a whole, that the command of the writ exceeds the legal duty of respondents.

That it affirmatively appears from the allegations of the alternative writ, that the increased tax rate provided by Chapter 10026, over that provided for in Chapter 9119, Acts of 1923, was to provide for payment of additional bonds, authorized by Chapter 10026, and that no additional bonds have been issued under the Act.

That bonds issued under Chapter 10027, were renewals of existing bonds, and not "additional bonds," within the meaning of Section 10, Chapter 6957, Acts of 1915, and no increase of tax rate was authorized by the refunding Act, Chapter 10027, Acts of 1925, which became a law June 4, 1925, seven days before Chapter 10026 became a law.

That there being no additional bonds issued, there was no consideration for the increase in tax rate provided for in Chapter 10026, Acts of 1925, and that the maintenance of such increased rate did not become a part of the bond contract.

That there is no allegation in the alternative writ that the total assessments levied under Chapter 14717, Acts of 1931, are less than the total assessment authorized in either Chapter 9119, Acts of 1923, or Chapter 10026, Acts of 1925.

That the allegations of the alternative writ, that the total taxes levied under provision of Chapter 13633, Laws of Florida, 1929, is less than taxes levied under Chapter 9119, Acts of 1923, is not borne out by a computation of the total levied under the respective Acts.

That the provisions of Section 1167 and 1168, Revised General Statutes, are not now the law of Florida, the same having been repealed, by Chapter 14717, Acts of 1931.

That it appears from the allegations of the alternative writ, that there has been unreasonable delay on the part of relators in applying for relief, and that the issuance of a peremptory writ of mandamus would cause confusion and disorder.

It will be seen from the foregoing summary of the allegations of the alternative writ of mandamus as amended, and the grounds of the motion to quash the same, that the proposition raised, involve the consideration of the statutes establishing, and providing for the government, control and maintenance of Everglades Drainage District, originating with Chapter 6456, Laws of Florida, Acts of 1913, and amended by Chapter 6957, Laws of Florida, Acts of 1915, Chapter 7305, Laws of Florida, Acts of 1917, and Chapter 7863, Laws of Florida, Acts of 1919, all of which are codified in Revised General Statutes of Florida, under Title VII, Article IV, and found in Sections 1160 to 1188, inclusive. (Compiled General Laws, Sections 1530 to 1543, and Sections 1545, 1546, 1547, 1552, 1553, 1554, 1555, 1556, 1557, 1560, 1561, 1562, 1563, 1564 and 1565.) There is also involved a consideration of Chapter 8413, Laws of Florida, Acts of 1921, Chapter 9119, Laws of Florida, Acts of 1923, Chapters 10026 and 10027, Laws of Florida, Acts of 1925, Chapter 13633, Laws of Florida, Acts of 1929, and Chapter 14717, Laws of Florida, Acts of 1931.

In previous decisions of the Court we have held, that where a motion is made to quash an alternative writ of mandamus, all the allegations of such alternative writ, sufficiently pleaded, are admitted to the true. State v. Jacksonville Terminal Co.,71 Fla. 295, 71 So. 474; State v. Florida East Coast Railroad Co., 71 Fla. 433, 71 So. 543. In our consideration of the motion to quash the alternative writ in the instant case, we therefore, for the purpose of considering the motion, consider that all the allegations of the alternative writ as amended, which are properly and sufficiently pleaded, are true. As we view the grounds of the motion to quash there is no question raised as to any defect in the alternative writ, as a pleading, but it questions the sufficiency of the facts alleged, to warrant the relief asked for.

Inasmuch as Mr. Justice WHITFIELD in a carefully prepared statement in the opinion prepared by him, in the case of Martin v. Dade Muck Land Company, 95 Fla. 530, 116 So. 449, has given a full and instructive history of the statutes above referred to, up to the time the opinion was written, and inasmuch as another complete history of all the enactments herein above referred to has been recently given in the able opinion prepared by Federal Judge STRUM, former Chief Justice of this Court, in the case of Rorick v. Board of Commissioners of Everglades Drainage District, 57 F.2d 1048, we deem it unnecessary in our discussion of the instant case to review these statutes, except insofar as we may be required to quote such portions as are pertinent to the questions raised herein.

The two principal questions involved in this case are, First: Have the Relators as holders of negotiable coupon refunding bonds, of Everglades Drainage District issued under the provisions of Chapter 10027, Laws of Florida, Acts of 1925, the right by mandamus to compel, the present Board of Commissioners of Everglades Drainage District, to prepare tax lists for the year 1932, of the lands subject to drainage tax in said district, and send down such lists to the tax assessors of the counties affected, and to require the tax assessors to enter such lists upon the tax assessment rolls of their respective counties, in accordance with the provisions of Sections 1167 and 1168, Revised General Statutes of Florida, Compiled General Laws, 1927, Sections 1537 and 1538? The Revised General Statutes of Florida, 1920, is the last revision of the General Statutes of the State to be enacted as a whole by the Legislature.

The second question involved is: What is the acreage tax rate applicable in a mandamus proceeding by the holders of negotiable coupon refunding bonds, issued by virtue of Chapter 10027, Laws of Florida, Acts of 1925?

Chapter 6456, Acts of 1913, established the Everglades Drainage District and provided for a Board of Commissioners for said district and for the levy of taxes and for drainage operations for the reclamation of the lands in the district.

Under the provisions of Section 5, Chapter 6456, now, with certain amendments hereinbefore referred to, codified as Section 1164, Article IV, Revised General Statutes of Florida, Section 1534, Compiled General Laws, 1927, an acreage tax was levied and imposed, for the purpose of "constructing, completing and maintaining the work of drainage and reclamation," etc., authorized by the Act. In Section 6 of Chapter 6456, now codified as Section 1165, Revised General Statutes of Florida, Section 1535, C. G. L., it is provided among other things that "the proceeds arising from the acreage tax levied by this Article shall be used by the said Board in the construction and maintenance of canals, the purchase of land and personal property and to repay loans, and the interest thereon, and to the creation of a sinking fund for theretirement of the principal of the bonds that the Board mayissue under the provisions of this Article and to the paymentof interest thereon." (Italics supplied.)

Section 19 of Chapter 6456, Laws of Florida, Acts of 1913, which as amended by Section 10, Chapter 6957, Laws of Florida, Acts of 1915, and Section 3 of Chapter 7862, Laws of Florida, Acts of 1919, is now Section 1178, Revised General Statutes of Florida, provides among other things as follows:

"The Board of Commissioners of Everglades Drainage District, is hereby authorized and empowered to borrow money on permanent loans, and incur obligations from time to time * * * for the purpose of raising funds to continue and prosecute to final completion, the canals * * * and all other expenses necessary or needful to be incurred in carrying out the purposes of this Article, and the better to enable said Board to borrow the money necessary to carry out the purposes aforesaid, the said Board is hereby authorized and empowered toissue in the corporate name of said Board negotiable couponbonds of said Everglades Drainage District." (Italics supplied.)

According to the allegations of the alternative writ of mandamus as amended, the Board of Commissioners, under the authority given in Section 1178, Revised General Statutes,supra, had issued and there were outstanding, up to and including January 1, 1925, negotiable coupon bonds aggregating several million dollars. On June 4, 1925, Chapter 10027, Laws of Florida, became a law. It was passed to amend Section 1179, Revised General Statutes of Florida. Under the provisions of Chapter 10027, Laws of Florida, the Board of Commissioners of Everglades Drainage District, were authorized, in the event they should, "for any reason deem it advisable for the best interests of the District to refund any of the Bonds issued under the provisions of this Article, or the interest thereonto borrow money, and issue in the name of said Board, notes ornegotiable coupon bonds of said Everglades Drainage District, in an amount sufficient to meet such bonds and coupon indebtedness." (Italics supplied.)

It is further provided in Chapter 10027, Laws of Florida,supra, that all refunding bonds issued under its provisions shall constitute an obligation of equal dignity with any and all other bonds theretofore issued or that might thereafter be issued against the district.

According to the admitted allegations of the alternative writ of mandamus as amended, the relators herein are holders for value of negotiable coupon refunding bonds, authorized by, and issued under, the provisions of Chapter 10027, Laws of Florida, Acts of 1925, supra; and such bonds are, by virtue of this law, of equal dignity with any bonds issued by the Board of Commissioners either prior, or subsequent to the enactment.

What are some of the contract rights of the holders of negotiable coupon bonds of Everglades Drainage District?

Section 23 of Chapter 6456, Laws of Florida, Acts of 1913, which is now codified under Article IV, Title VII, "Everglades Drainage District" as Section 1182, Revised General Statutes of Florida, provides as follows:

"This Article shall without reference to any other Act of the Legislature of Florida be full authority for the issuance and sale of the bonds in this Article authorized, which bonds shall have all the qualities of negotiable paper under the law merchant, and shall not be invalid for any irregularity or defect in the proceedings for the issue and sale thereof, and shall be incontestible in the hands of bona fide purchasers or holders thereof for value. No proceedings in respect to the issuance of any such bonds shall be necessary, except such as are required by this Article."

"The provisions of this Article shall constitute anirrepealable contract between the said Board of said EvergladesDrainage District and the holders of any bonds and the couponsthereof issued pursuant to the provisions hereof. Any holder ofany of said bonds or coupons may either at law or in equity bysuit action or mandamus, enforce and compel the performance ofthe duties required by this Article of any of the officers orpersons mentioned in this Article in relation to the saidbonds, or the collection, enforcement and application of taxesfor the payment thereof." (Italics supplied.)

Section 1179, Revised General Statutes of Florida, is a codification of Section 20, Chapter 6456, Laws of Florida, Acts of 1913, supra, as amended by Section 6, Chapter 7305, Laws of Florida, Acts of 1917. It is found under Article IV, Title VII, of the Revised General Statutes.

When the term "this Article" is used in the several sections of the Revised General Statutes and the subsequent amendments thereto, it has reference to Article IV of Title VII of said Revised General Statutes, above mentioned, under which all the laws concerning Everglades Drainage District are codified.

In the enactment of the statutes providing for the Everglades Drainage District (Chapter 6456, Laws of Florida, Acts of 1913,supra) it was the legislative intent that its several provisions form and each become a part of one general scheme, or program for the drainage and reclamation of the lands embraced in the district.

It will be noted in the original Act, viz., Chapter 6456, Laws of Florida, supra, that in Section 6 thereof the words,"this Act," are used in referring to the acreage tax authorized in Section 5. In Sections 8 and 9, the words "this Act" are used in referring to the listing of the lands for acreage tax, and the assessment thereof by the tax assessors. In Sections 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30, we find the same term, "this Act," used, thus indicating the intention that the entire law was one general plan for the drainage of the district.

When the Revised General Statutes were written and adopted, the same purpose and intent is manifest in the codification therein of all these sections of Chapter 6456, Laws of Florida, Acts of 1913, and the amendments thereto under Title VII, Article IV. Each section of the Revised General Statutes as codified under this Article and Title, substituting the words"this Article" for the words "this Act," found in the original law. It will be noted further that in each of the Acts of the Legislature amending certain sections of Revised General Statutes pertaining to Everglades Drainage District, the lawmakers use the term "this Article," still carrying out the idea that such amendments should be a part of the general scheme or program provided for in the original Act.

When, therefore, in Chapter 10027, Laws of Florida, Acts of 1925, supra, amending Section 1179, Revised General Statutes,supra, it is provided that "in the event the Board of Commissioners of Everglades Drainage District, shall for any reason deem it advisable and for the best interest of the district to refund any of the bonds issued under the provisions of 'this Article' or interest thereon, said Board of Commissioners may borrow money and issue in the corporate name of the said Board, notes or negotiable coupon bonds, etc., and when in the same Act it further provides, "Said refunding bonds shall be issued in such denominations, bear such interest, rate, and mature at such time or times, as said Board may determine, and in all other respects said bonds shall in themanner or issuance and sale be subject to the provisions of'this Article,' " it necessarily gives such refunding bonds the same standing as the bonds issued under any of the provisions of the law found in the sections of the Revised Statutes codified under Article IV, Title VII.

The holders of refunding bonds issued under the authority of Chapter 10027, Laws of Florida, Acts of 1925, had therefore, the irrepealable contract provided for in Section 1182, Revised General Statutes of Florida, and the right, as such bondholder, to "either at law or equity by suit action or mandamus toenforce and compel the performance of the duties required bythis Article of any of the officers or persons mentioned inthis Article in relation to the said bonds or to the collection, enforcement and application of the taxesfor payment thereof." (Italics supplied.)

Under the admitted allegations of the alternative writ of mandamus as amended, the relators are as we have already observed holders for value of negotiable coupon refunding bonds, authorized by and issued under the provisions of, Chapter 10027, Laws of Florida, supra. Such bonds being, under this law, of equal dignity with any and all other bonds of the district, issued prior or subsequent to the enactment, the relators therefore have, under the provisions of Section 1182, Revised General Statutes, the right by mandamus to enforce and compel the officers of Everglades Drainage District, to perform their duties, in relation to such bonds, and the collection, enforcement and application of the drainage taxes as required in said section.

Section 1167, Revised General Statutes of Florida, Section 1537, Compiled General Laws, requires the Board of Commissioners of Everglades Drainage District to perform the ministerial duty of preparing the lists of lands subject to drainage tax in each county embraced in the district, with the amount of tax on each parcel, and forward to the tax assessors, before the drainage acreage tax can be entered on the tax rolls of the respective counties. The tax assessors are not authorized to enter such drainage acreage tax on the tax rolls, and the tax collectors cannot collect the same, unless and until the Board of Commissioners prepare and forward to the assessors the lists of land with the amount of the tax fixed by the law.

The admitted allegations of the alternative writ of mandamus as amended, show that the respondents, members of the Board of Commissioners of Everglades Drainage District, entirely failed to perform their duty in preparing the lists of lands, and levying the rate of acreage tax for the year 1932, as required by Section 1167, supra. Necessarily the respondents, tax assessors, have been unable to function as required in Section 1168, Revised General Statutes, Section 1538, Compiled General Laws.

The relators, as holders of negotiable refunding bonds issued on July 1, 1925, have the right under Section 1182, Revised General Statutes, by writ of mandamus, to compel the Board of Commissioners of Everglades Drainage District and the tax assessors of the district to function for the year 1932, as required in Section 1167 and 1168, Revised General Statutes.

Furthermore, the provisions of the several statutes and the amendments thereto regarding the issuance of the Everglades Drainage District bonds, and the levying, assessing and collection of the acreage tax for drainage, and also for the application of the proceeds thereof to the payment of interest and the creation of a sinking fund for the payment of principal when due, in effect at the time of the issuance of the refunding bonds held by relators, became a part of the contract between the Board and such refunding bondholders.

The general rule is, that included within the obligation of such a contract, is the power of taxation, the rate of taxation, the rate of taxation if such is prescribed, and the remedies generally existing for the enforcement of such tax at the time the contract was entered into. U.S. ex rel. Von Hoffman v. Quincy, 4 Wall, 535, 18 S. Ed. 403; Galena v. Amy, 5 Wall. 705, 18 L.Ed. 560; Mobile v. Watson, 116 U.S. 289, 29 L.Ed. 620; State v. Lehman, 100 Fla. 1313, 131 So. 533; Meyer v. Brown (Cal.) 26 P. 281; Rorick v. Board of Commissioners Everglades Drainage District, 57 Fed. 25, 1048, 6 R. C. L.,

In the case last cited Federal Judge STRUM, in the opinion of the Three-Judge Federal Court, under Section 266 of the Judicial Code, Section 380, Title 28 U.S.C.A., says:

"Statutes under which drainage district bonds were issued, and acreage tax levied to pay them, constituted a contract, which could not be impaired by withdrawing tax legislation or diverting the proceeds for other purposes."

We shall next take up for consideration the second question involved in the adjudication of this case, that is: What is the acreage tax rate applicable in this mandamus proceeding by the relators as holders of negotiable coupon, refunding bonds issued by virtue of Chapter 10027, Laws of Florida, Acts of 1925?

A reading of the statute (Section 1164, Revised General Statutes, supra) and the several amendments thereto, providing for the levy of an acreage tax on the lands embraced in Everglades Drainage District, reveals that from time to time the rate of such tax has been changed by the Legislature. From the creation of the district, the rate per acre of drainage tax has been fixed by the Legislature. There is no limitation upon the power of the law makers to fix and determine the amount of such tax.

When Everglades Drainage District was established, under the provisions of Chapter 6456, Laws of Florida, Acts of 1913,supra, the amount of drainage tax per acre on the lands within the district was fixed by the provisions of Section 5 of the Act, and the amount of such tax on each parcel of land was doubtless fixed as nearly as possible in proportion to the benefits received by such parcel from the drainage project. At each biennial session of the Legislature, subsequent to the passage of the Everglades Drainage District Act, in 1913, up to and including the session of 1925, the Legislature, by amendments to Section 5 of Chapter 6456, Laws of Florida, codified as Section 1164, Revised General Statutes, supra, changed the rate of acreage tax. It also appears that at each of the biennial sessions above referred to, the Legislature passed Acts amending Section 19 of Chapter 6456, Laws of Florida, codified as Section 1178, Revised General Statutes of Florida,supra, providing for the issuance of additional bonds of the district.

At the regular biennial session of 1925, the Legislature passed Chapter 10026, Laws of Florida, amending Section 1164, Revised General Statutes, as amended by Chapter 8413, Laws of Florida, Acts of 1921, and as amended by Chapter 9119, Laws of Florida, Acts of 1923, so as to fix a higher rate of drainage tax per acre, than had been previously provided. This same Act (Chapter 10026) also amended Section 1178, Revised General Statutes of Florida, so as to authorize the district to issue and have outstanding $3,000,000.00 of additional bonds.

As we have already observed in this opinion, Chapter 10027, Laws of Florida, Acts of 1925, supra, amending Section 1179, Revised General Statutes, supra, provided for the issuance of negotiable coupon refunding bonds, some of which, according to the admitted allegations of the alternative writ of mandamus as amended, are owned and held by the relators. Chapters 10026 and 10027, Laws of Florida, Acts of 1925, were both passed at the same session of the Legislature, and inasmuch as both have reference to the same general subject, and undertake to amend different sections of the Revised General Statutes, codified under the same Title and Article, they must be construed in the light of each other. It appears that Chapter 10027, Laws of Florida, authorizing the issuance of refunding bonds, and providing for the status of such bonds when issued, became a law on June 4, 1925. This was seven days prior to the date that Chapter 10026 became a law.

There is found no special provision in Chapter 10027 for a tax to pay the interest or retire the principal of the refunding bonds, that might be issued under the authority of this law. When we construe these two enactments, Chapters 10027 and 10026, passed at the same session of the Legislature, and relating to the same general subject, in the light of each other, it is evident that it was the legislative intent that the payment of the interest and the retirement of the principal of refunding bonds, issued under Chapter 10027, would be provided for with the tax authorized in the concurrent enactment, viz.: Chapter 10026, Laws of Florida, Acts of 1925.

According to the admitted allegations of the alternative writ of mandamus as amended, the Board of Commissioners of Everglades Drainage District, on July 1, 1925, under the authority given in Chapter 10027, Laws of Florida,supra, issued and sold negotiable coupon refunding bonds of the district, and that certain of these refunding bonds are owned and held by the relators; that the interest of these bonds has not been paid; that there is $1,056,715.00 of interest in default and unpaid on all the bonds of the district and that $501,000.00 of principal on all bonds is in default and unpaid, and that no provision for sinking fund as required by Section 1183, Revised General Statutes of Florida, Section 1560, Compiled General Laws, is being made. From further admitted allegations of the alternative writ of mandamus as amended, it is shown that other bonds of the district are outstanding, with maturity dates approaching, and that one judgment has already been recovered against the Board of Commissioners for a substantial sum, which remains unpaid.

Under such circumstances as these, we have already determined herein, that the relators as holders of negotiable coupon refunding bonds have vested contract rights to have the tax provided by law, at the time their bonds were issued, assessed, collected and disbursed, as the law requires.

The question most seriously controverted before us, is the acreage tax which under the law is applicable, in the enforcement of the relators' contract rights, as holders of refunding bonds of the district issued July 1, 1925.

The respondents contend, in the first place, that Chapter 14717, Laws of Florida, Acts of 1931, is the law of Florida, applicable to the levy of acreage tax for Everglades Drainage District, and that such tax is the rate applicable under the relators' contract with the Board of Commissioners of Everglades Drainage District.

We consider this contention untenable, for the following reasons. Chapter 14717, Laws of Florida, Acts of 1931, was enacted long after the issuance and the sale of the bonds held by the relators. If the provisions of this subsequent Act of the Legislature in any way lessens, retards or diminishes the means of paying the interest and principal of the bonds existing at the time they were issued, then such provisions of such subsequent Act cannot control, because it would impair the obligation of the contract between Everglades Drainage District and the relators as holders of the refunding bonds in violation of Section 10, Article I, Federal Constitution.

Let us look at some of the provisions of Chapter 14717, Laws of Florida, Acts of 1931, supra. It undertakes to rezone the lands embraced in Everglades Drainage District, and to provide for the grouping of certain areas, to be fixed by the Board of Commissioners, into units designated as "Maintenance Units."

Sections 7 and 8 of the Act require a division of the acreage tax fixed by the same Act, into a "Debt Service Tax" and an "Administration Tax," the total of which is much less than the acreage tax authorized in either Chapter 10026, Acts of 1925, or Chapter 9119, Laws of Florida, Acts of 1923. The "Debt Service Tax" is made applicable for the payment of the principal of, and interest on, all obligations of Everglades Drainage District, incurred prior to that date and then outstanding, whether they are obligations for outstanding bonds or otherwise. It is also provided that the "Administration Tax" shall be used solely for the payment of costs of administration, for which purpose there is also provided an annual ad valorem tax of one mill on each dollar of valuation for State and county taxation. Under this Act of 1931 provision is also made for a "Maintenance Tax" to be fixed by the Board of Commissioners not to exceed fifty cents per acre, on all lands embraced in such "Maintenance Units" as may be created under the law. This "Maintenance Tax" is to be usedonly "for the purpose of maintaining and operating the works of the District," beneficial to the "Maintenance Unit" affected.

When the negotiable coupon refunding bonds now held by the relators were issued on July 1, 1925, Chapter 10026, Laws of Florida, Acts of 1925, supra, fixing the amount of the acreage tax to be annually assessed, was in effect. Section 1183, Revised General Statutes of Florida, was also in effect, its provisions being as follows:

"It shall be the duty of the State Treasurer, or his successors in office, as custodian of the funds belonging to said Board of Commissioners and the said Drainage District,out of the taxes levied and imposed by this Article, and out ofany other moneys in his possession belonging to the said Boardor to the said Drainage District, which moneys so far asnecessary are hereby set apart and appropriated for thepurpose, to apply said moneys and to pay the interest on saidbonds, as the same shall fall due and at maturity of said bondsout of said moneys to pay the principal thereof, and there shall be and there is hereby created a sinking fund for the payment of the principal of said bonds, and the said Boardshall set apart and pay into such sinking fund, annually out of the taxes levied and imposed by this Article, and otherrevenue and funds of said district at least two per cent. ofthe amount of bonds outstanding. The said sinking fund for the payment of the principal of said bonds shall not beappropriated for other purpose than that herein specified." (Italics supplied.)

The above quoted provisions of Section 1183, as also the acreage tax provided for on July 1, 1925, entered into and, under the provisions of Section 1182, Revised General Statutes, became a part of the "irrepealable contract" between the Board of Commissioners, and Everglades Drainage District, with the relators as holders of the refunding bonds and coupons thereof issued by virtue of Chapter 10027, supra, on July 1, 1925.

It is further alleged in the alternative writ of mandamus as amended, that each issue of the outstanding bonds, including the refunding bonds issued July 1, 1925, was made pursuant to resolutions of the Board of Commissioners of Everglades Drainage District, in each bond referred to, and such resolutions as to each issue included the following paragraph:

"BE IT RESOLVED, That there shall be and is hereby created a sinking fund for the payment of the principal of the said bonds, and the Board does hereby set apart and direct to be paid into such sinking fund annually, out of the taxes levied and imposed in said district and such other revenues and funds of said district, not less than two per cent. of the amount of bonds outstanding, and in and for each of the years during which said bonds shall mature there shall in addition be paid into the sinking fund, in time to reasonably pay the principal of said bonds after they mature, the amount of bonds maturing each year. The sinking fund for the payment of the principal of the said bonds shall not be appropriated to any other purpose than that herein specified."

We see, therefore, that not only is the "irrepealable contract" provided in Section 1182, Revised General Statutes of Florida, a part of the relators' contract as bondholders, but this statute in substance has also, by resolution of the Board of Commissioners containing the above quoted language, been made a part of such contract.

In our discussion of the provisions of Chapter 14717, Laws of Florida, Acts of 1931, we have already observed that the acreage tax levied under such provisions is less than that fixed in Chapter 10026, Laws of Florida, Acts of 1925, and furthermore that the division and appropriation of such drainage tax, made in Chapter 14717, Laws of Florida, are contrary to the provisions made for the appropriation of such drainage tax money, for the retirement of bonds found in Sections 1165 and 1183, Revised General Statutes of Florida. We also call attention to the fact that the rate of certain of the acreage tax provided for in Chapter 14717, Acts of 1931, is left to the discretion of the Board of Commissioners.

Under Section 10, Article I, of the Constitution of the United States, no State can pass a law impairing the obligation of contracts.

"The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced — by which the parties can be obliged to perform it. Whateverlegislation lessens the efficacy of these means impairs theobligation. If it tend to postpone or retard the enforcement ofthe contract, the obligation of the latter is to that extentweakened." State of Louisiana ex rel. Morris v. City of New Orleans, 102 U.S. 203, text 207 (12 Otto) 26 Law Ed. 132, text 133. (Italics supplied.)

"Conformable to the well established rule the laws which subsist at the time and place of making the contract, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms, the obligation of a contract is measured by the standard of the laws in force at the time itwas entered into, and its performance is to be regulated by theterms and rules they prescribe. There can be no other standard by which to ascertain the extent of the obligation than that which the terms of the contract indicate according to their settled legal meaning." 6 R. C. L., pages 325, 326. (Italics supplied.)

"Laws requiring taxes to the requisite amount, to be collected to pay municipal bonds, which were in force when the bonds were issued cannot be annulled by subsequent legislation." United States ex rel. Hoffman v. Quincy, supra.

"A subsequent Act restricting the power to tax, so far as it affects bonds is a nullity." Ibid.

In the case of State ex rel. Hoffman v. Quincy, supra, Mr. Justice SWAYNE, in speaking for the Court, says on pages 408, 409, 18 Law Ed. (text):

"It is also well settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. The principle embraces alike those which affect its validity, construction, discharge and enforcement. * * * Nothing can bemore material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against invasion. The obligation of a contract 'is the law which binds the parties toperform the agreement.' " (Italics supplied.)

Authorities sustaining the proposition that subsequent Acts of the Legislature cannot annul, nor diminish, retard or lessen the efficacy of prior laws entering into and forming a part of the contracts with bondholders, might be quoted from indefinitely. The following are cited as some of the decisions sustaining the rule: Galena v. Amy, 5 Wall. 705, 18 L.Ed. 560; State ex rel. Wolfe v. New Orleans, 103 U.S. 358, 26 L.Ed. 395; State of Louisiana ex rel. Southern Bank v. Pilsbury,105 U.S. 278, 26 L.Ed. 1090; Mobile v. Watson, 115 U.S. 289, 29 L.Ed. 620; County Court of Ralls County v. Douglas, 105 U.S. 753, 26 L.Ed. 1220; State ex rel. Gillespie, et al., v. Carlton,103 Fla. 810, 138 South. Rep. 612, 619 (Text); Trustees of Internal Improvement Fund v. Baily, 10 Fla. 112, text 129, 131; Rorick v. Board of Commissioners of Everglades Drainage District,57 F.2d 1048, supra. Humphries v. State, 108 Fla. 92,145 So. 858; State ex rel. v. St. Petersburg, 106 Fla. 742,144 So. 313.

In the Rorick case above cited Judge Bryan, Circuit Judge, and District Judges Shepard and Strum, sitting as a statutory three-judge court for the Northern District of Florida, had before them this identical question; that is, the effect of Chapter 14717, Laws of Florida, Acts of 1931, in providing an acreage tax applicable to the contract with bondholders of Everglades Drainage District, issued prior to its enactment. In the opinion of the three judges, written by Judge Strum, they say:

"Statute fixing new district acreage taxes and creating administration fund from proceeds, held, inoperative against holders of outstanding District bonds so far as reducing or diverting tax proceeds available for payment of bonds, interest and principal," and again they say:

"Proceeds of administration fund, created by statute from proceeds of drainage district acreage taxes, cannot be pledged to repay money borrowed against anticipated revenues therein as authorized thereby to prejudice of bond interest and sinking fund requirements of previous Acts."

We concur in the holding of the three Federal Judges, in the case of Rorick v. Board of Commissioners of Everglades Drainage District, that the acreage tax provided in Chapter 14717, is void and ineffective insofar as it affects the contract rights of the relators as holders of bonds issued and acquired by them prior to the enactment of the law. And we further hold that the provisions of Chapter 14717, Laws of Florida, supra, providing for the levy, collection and disbursement of the acreage tax for drainage purposes impair the obligation of the contract of the relators as bondholders, in that they fix an acreage tax less than that provided when the bonds held by relators were issued.

The respondents next contend that if the acreage tax authorized by Chapter 14717, Laws of Florida, is not applicable, to satisfy the contract rights of the relators as holders of the refunding bonds described in the alternative writ of mandamus as amended, then the acreage tax provided in Chapter 13633, Laws of Florida, Acts of 1929, is the tax applicable to the retirement of such bond obligations held by relators.

It appears that Chapter 13633, supra, fixes a lower rate of acreage tax, than was levied under Chapter 10026, supra. Furthermore, it appears that Chapter 13633, Laws of Florida, is a companion enactment with Chapter 13711, Laws of Florida, Acts of 1929, creating "Okeechobee Flood Control District," within Everglades Drainage District. In Section 6 of Chapter 13633, it is provided that "there shall be deducted from the taxes hereinbefore provided for as to each acre of land within said (Everglades Drainage) District, in each year, an amount equal to the sum of money levied for such year on such land as an acreage tax, under the provisions of an Act of the Legislature of Florida creating Okeechobee Flood Control District," etc. Chapter 13633, Acts of 1929, further authorized the Board of Commissioners of Everglades Drainage District to reduce the taxes levied by the Act, in each zone proportionately, to the extent of not more than twenty-five per cent. of the levy of the acreage tax provided for in the Act. The provisions, therefore, of Chapter 13633, above referred to, impair the obligation of the contract of the relators as holders of refunding bonds of the district issued on July 1, 1925, and under the authorities cited in our consideration of Chapter 14717, the provisions of said law are clearly void in that they impair the obligation of the bondholders' contracts with the Board of Commissioners of Everglades Drainage District, and with the district.

It is next contended by the respondents that if the acreage tax as provided for in neither Chapter 14717, Laws of Florida, Acts of 1931, nor Chapter 13633, Laws of Florida, Acts of 1929, is applicable to meet the contract obligations of the Drainage District, with the relators as holders of refunding bonds issued on July 1st, 1925, then the tax provided for by law, at the time of the issuance of the original bonds, to be retired with the money derived from the sale of the refunding bonds, must govern.

It is the contention of the relators, as shown from the allegations of the alternative writ of mandamus as amended, that the acreage tax required to be levied under Chapter 10026, Laws of Florida, Acts of 1925, is the acreage tax applicable to the payment of the interest and creation of sinking fund for the retirement of the principal of the refunding bonds of the Drainage District, held by them.

The respondents contend that because none of the additional bonds authorized by Chapter 10026, Acts of 1925, have been issued, therefore, the increased acreage tax provided for in the Act is not effective and cannot be enforced by the holders of bonds issued prior to the enactment, nor the holders of the refunding bonds of July 1, 1925, until such additional bonds have been issued. The respondents claim that they are supported in their position by the opinion of the three Federal Judges in the case of Rorick v. Board of Commissioners of Everglades District, supra. Apparently this opinion does sustain their position, Federal Judge Strum, speaking for the Court in that case, says in 57 Federal Reporter (2nd) page 1058 text:

"Nor does the issue of refunding bonds under Chapter 10027 bring into operation the increase in rates provided in Chapter 10026, so as to give plaintiffs a vested right in such increase. Chapter 10027 is not an amendment of the original Section 19, which relates to bonds and additional bonds. It is an amendment to the original Section 20, and relates to redemption (and denomination) of bonds. These refunding bonds are in lieu of other bonds outstanding under the 1923 Act and prior Acts, which former bonds were retired pro tanto by the proceeds of the refunding bonds. There is no authority in this Act to fund or refund any obligation of the district other than existing bonds and interest thereon. The indebtedness of the district, therefore, was not increased, nor was any additional indebtedness created by the refunding bonds. Their issue was a renewal (See Davis v. Dixon, 98 Fla. 87, 123 So. 536, text 538; State v. Weinrich, 291 Mo. 461, 236 S.W. 872) of an existing debt which had been incurred in reliance upon the rates of taxation fixed by the 1923 Act, and prior Acts. The refunding bonds are therefore not 'additional' bonds within the sense of Chapter 6957 (Section 10), Acts of 1915, so as to require the levy of 'additional' taxes, although refunding bonds are entitled to parity of payment out of the sinking fund above referred to. No specific increase in tax rates having been levied or authorized in the refunding Act, the tax levies applicable to the retired bonds apply also to the refunding bonds by which the former bonds were retired."

With due deference to the opinion of the learned Federal Judges and their reasoning regarding the acreage tax applicable to the payment of the interest and providing for the retirement of the principal of the refunding bonds, as set forth in the portion of their opinion just quoted, we find ourselves unable to concur in their findings on this point involved in the case.

In the first place, the learned judges seem to proceed upon the theory that the issuance of "additional" bonds by the Drainage District, as authorized first, by Section 10, Chapter 6957, Acts of 1915, the first amendment to Section 19, Chapter 6456, is the only condition upon which the Legislature may provide for an increase in the rate of acreage tax. As we see it, the amendment to Section 19, Chapter 6456, supra, made by Section 10, Chapter 6957, supra, as also each subsequent amendment thereof, authorizing "additional" bonds, it was the intention of the Legislatures to prevent the issuance of "additional" bonds, without provisions for additional tax to care for the retirement thereof, and not to restrict the legislative discretion in increasing the acreage tax, for other valid reasons. We find nothing in the several statutes providing for the financing of Everglades Drainage District that prevents the Legislature from at any time while in session, when in its judgment circumstances may demand, increasing the rate of acreage tax.

As we have already stated in this opinion, the rate of acreage tax, provided in the original Act, and each amendment thereto is fixed by the Legislature. While it is true the Legislature has increased the rate of acreage tax each time, it gave authority to issue additional bonds, it cannot, in our opinion, be successfully contended that the issuance of additional bonds, is the only basis for any increase of such acreage tax rate by the Legislature.

Under the law, as we view it, the issuance of "additional" bonds was not, and is not, the sine qua non for increasing the rate of acreage tax on lands embraced in the Drainage District.

We differ from the learned Federal Judge in the portion of their opinion quoted above in another respect. We think that while the issuance of the refunding bonds, authorized under Chapter 10027, supra, did not add to or increase the indebtedness of Everglades Drainage District, yet the issuance and sale of such bonds did create new and different contracts or obligations evidencing such indebtedness. Under the provisions of Chapter 10027, Laws of Florida, supra, authorizing the refunding of the indebtedness of the district, the Board of Commissioners of Everglades Drainage District were authorized to "borrow money and issue in the corporate name of the said Board, notes or negotiable coupon bonds" of the district, to procure means to refund the original bonds sought to be retired.

When money is borrowed there is necessarily a contract either express or implied to pay it back. Under the law authorizing the Board of Commissioners of Everglades Drainage District to borrow money to refund the existing bonded indebtedness they were directed to, and they did, according to the allegations of the alternative writ of mandamus as amended, enter into express contracts, viz.: negotiable coupon bonds, evidencing the obligation of the district to pay back such borrowed money.

In the case of Davis v. Dixon, 98 Fla. 87, 123 So. 536, cited by Federal Judge Strum, in the portion of the opinion of the three Federal Judges hereinabove quoted, and cited in the brief of counsel for respondents, we were considering whether or not a Board of Public Instruction was authorized to issue refunding bonds of a Special Tax School District, without first having submitted the question to a vote of the qualified voters, freeholders in the district. On page 91 text, 98 Fla., we said in that case, speaking through Mr. Justice STRUM, then a member of this Court, "the issuance of refunding bonds for the purpose of discharging an existing legal indebtedness, originally incurred in accordance with the constitutional requirements, does not create a new debt, or impose a new liability againstthe taxpayers or property within the meaning of suchconstitutional provision, but merely renews and continues in achanged form the original existing indebtedness which wasoriginally created in conformity with the Constitution, and that such constitutional provision therefore does not prohibit, the renewal, without a vote, of the previously existing valid debt, so long as no additional liability is created." (Italics supplied.) The constitutional provision referred to in the above quotation from the opinion of Mr. Justice STRUM was Section 17, as amended in the year 1924, of Article XII of the Constitution, wherein it was provided that Special School Tax Districts can issue bonds, whenever a majority of the qualified electors who are freeholders shall vote in favor of the issuance of the same. We did not in that opinion hold that the refunding bonds issued did not make a new and different contract obligation between the district and a purchaser ofsuch refunding bonds. We only held that there was no additional or increased indebtedness or liability created, and therefore no vote of qualified freeholders who had already voted for and fixed the amount of bonded indebtedness, would for that reason alone, be required.

In the instant case the indebtedness evidenced by the bonds retired with the proceeds from the refunding bonds still exists insofar as the amount thereof, and the liability of the drainage district therefor is concerned; but it is evidenced by a new or different obligation or contract, viz.: negotiable coupon refunding bonds of the district, issued and sold under the authority of Chapter 10027, supra, to purchasers in the open market. If A, being indebted to B, in a certain sum, executes his promissory note payable to B for the amount, and for the purpose of retiring his note to B, A borrows a similar sum from C, executing his promissory note payable to C for the amount, and with this money retires his note to B, he does not in the transaction cancel or diminish his indebtedness or liability, he only secures a release from his obligation to B by making a new and different contract or obligation evidencing the indebtedness. C, from whom A procures the money to retire his obligation to B, is not concerned with the assets and ability of A to pay at the time he executed his note to B, but he is concerned with and will satisfy himself as to the assets and ability of A, at the time he executed the note to C. The situation regarding the retirement of original Drainage District bonds with the proceeds of money borrowed on refunding bonds of the district as set forth in the alternative writ of mandamus amended, before us in this case, is analogous to that given in the foregoing illustration.

In Klein v. Kinkard, 16 Nev. 194, the Court of Nevada, in an opinion involving the status of an indebtedness evidenced by a bond issue, retired by the issuance of refunding bonds, says on page 205, text:

"The proceedings by which the bonds of 1871 were retired, and the three hundred and eighty thousand dollar bond, now in the school fund, issued, did not extinguish the territorial indebtedness. That indebtedness still exists, but is evidencedby a different obligation." (Italics supplied.)

The opinion of the Three-Judge Court, in the case of Rorick v. Board of Commissioners of Everglades Drainage District,supra, in the portion of their opinion quoted above, further held that because Chapter 10027, Laws of Florida, supra, is not an amendment to Section 19 of the original Act, now Section 1178, Revised General Statutes, relating to bonds and additional bonds, but it is an amendment to Section 20 of the original Act, Section 1179, Revised General Statutes, relating to the redemption and denomination of bonds, therefore the holders of refunding bonds issued under such Act, have no vested right in the increased tax rate provided for in Section 1164, Revised General Statutes, as amended by Chapter 10026, Laws of Florida, Acts of 1925. We cannot concur with the learned Federal Judges in their holding on this proposition.

Section 1179, Revised General Statutes, as amended by Chapter 10027, supra, does carry the title of heading, "Denomination of Bonds; redemption," but, as we have already stated in this opinion, it is a part of the general scheme for the drainage and reclamation of the lands in the district, as are also each of the other sections codified under Title VII, Article IV, of the Revised General Statutes. This section of the Revised General Statutes as amended by Chapter 10027 refers to refunding the bonds issued under "this Article," meaning the bonds provided for in Section 1178, Revised General Statutes, or Section 19 of the original Act as amended. It further provides with reference to the refunding bonds authorized to be issued, that "in all other respects said bonds shall in the manner of issuance and sale be subject to the provisions of "this Article," and then follows the provision that "All refunding bonds issued under authority hereof shall constitute an obligation of equal dignity with any and all other bonds heretofore, or that may be issued against and by said district." No special provision was made in Chapter 10027 amending Section 1179, Revised General Statutes, for the levy of taxes to pay the refunding bonds, issued under its authority, for the reason that provision for the levy of an acreage tax for the purpose of paying the expenses of the Board, and the sinking fund for the repayment of the "principal of the bonds that the Board may issue, under the provisions of this Article and to the payment of the interest thereon," had been made by Section 1178 of the Revised General Statutes, as amended, and as was being further amended at the same session of the Legislature, 1925, in Chapter 10026,supra. These two enactments, Chapters 10026 and 10027, were bills passed at the same session of the Legislature, relating to the same general scheme or program for Everglades drainage, and will be construed and considered in the light of each other. Milam v. Davis, 97 Fla. 916, 123 So. 668; Curry v. Lehman, 55 Fla. 847, 47 So. 78; Dade County v. Miami, 77 Fla. 786, 82 So. 354. Each of these laws became a part of the "irrepealable contract" "between the said Board and said Everglades Drainage District with the holders of any bonds and the coupons thereof issued pursuant to the provisions hereof." Evidently it was the legislative intent that the levy of acreage tax provided for in Chapter 10026 was applicable for the payment of interest and principal of refunding bonds issued under Chapter 10027. It was under the provisions of Section 1165, Revised General Statutes, 1535, Compiled General Laws, the same being the codification of Section 6, Chapter 6456,supra, that provision was originally made (and it has never been changed or amended) for the use of acreage tax money to "repay loans and interest thereon and to the creation of a sinking fund for the retirement of the principal of the bonds that the Board may issue under this Article, and to the payment of interest thereon."

It will be noticed that it does not provide for the retirement, etc., of the bonds issued under Section 1178, Revised General Statutes, or of Section 19 of Chapter 6459, but from the proceeds of such acreage tax the retirement of all bonds issued under the provision of this Article (Article IV, Title VII,) are to be provided for. Section 1179 of the Revised General Statutes as amended by Chapter 10027, is a provision under "this Article" authorizing the issuance of bonds. It seems to us that if the tax provided for in Section 1164, Revised General Statutes, as amended by Chapter 10026, is not to be used in the retirement of bonds issued under the provisions of 10027, because specific provision to that effect is not made in the Act; then by the same token the proceeds of such tax cannot be used for the retirement of bonds issued under Section 1178 as amended by Section 3 of Chapter 10026. Nothing is said in this section of the law providing for issuance of original bonds about the levy of a tax to take care of them. But the original bonds provided for under Section 3, Chapter 10026, and the refunding bonds issued under the provisions of Section 1, Chapter 10027, are all bonds issued under the provisions of "this Article" (Art. IV, Title VII), and the provisions of Section 1165, Revised General Statutes, for the creation of a sinking fund, etc., from the acreage tax, are applicable to both.

We hold then, under the law as found in Section 1165, Revised General Statutes, that the acreage tax provided for in Section 1164, Revised General Statutes, as amended, is that tax from which provision should be made for the retirement of the principal of, and the payment of interest on, the refunding bonds issued under Section 1179, Revised General Statutes, as amended by Chapter 10027, Laws of Florida, Acts of 1925.

It will be seen that the learned Federal Judges hold in the above quoted portion of their opinion, found in 57 F.2d, that either the tax provided for in Chapter 9119, Laws of Florida, Acts of 1923, or Acts prior thereto, under which the original bonds retired from the proceeds of the refunding bonds were issued is the tax that should apply in providing the sinking fund for the retirement of these refunding bonds.

Again we find ourselves unable to agree with the holding of the three-judge Federal Court. The negotiable coupon refunding bonds authorized by Chapter 10027, Laws of Florida, Acts of 1925, and, according to the admitted allegations of the alternative writ of mandamus as amended, issued July 1st, 1925, while not creating an additional debt or liability against the Everglades Drainage District, they do represent a new and different obligation or contract evidencing the indebtedness. These refunding bonds issued under the provisions of Chapter 10027, Laws of Florida, are, from the date of the issuance, contracts of the Everglades Drainage District, with the holders of the bonds. The funds derived from the sale of the original bonds issued under the authority of Chapter 9119, Laws of Florida, Acts of 1923, and prior amendments to Section 1178, Revised General Statutes, may have been used to fund debts of the Everglades Drainage District, created or incurred prior to the issuance of such original bonds, but would the rate of acreage tax fixed by law at the time the funded debts were incurred by the district, be the acreage tax available to the holders of such bonds issued perhaps months or years earlier? We think not. Neither, then, will the rate of acreage tax fixed by law at the date of the original bonds be considered a part of the contract with the holders of refunding bonds from the proceeds of which such original bonds were funded, issued months or years after the original bonds meet the tax requirement at the date such refunding bonds were issued. The refunding bonds constitute a new and different contract between the board and the Everglades Drainage District, on the one part, and the holders of the refunding bonds on the other part that became effective when the refunding bonds are issued. Suppose the law in force on July 1, 1925, the date the refunding bonds were issued, had fixed much lower rate of acreage tax than that provided for in the laws in force when the bonds retired were issued; would not the purchasers of the new or refunding bonds be bound by the acreage tax fixed by the law in force when such bonds were issued? Certainly they would. The bond holders can only insist upon the tax rate authorized by the law in force at the date of the issuance of the bonds.

At its regular session, 1927, the Legislature passed Chapter 12017, Laws of Florida, the purpose of which, as expressed in the title of the Act, was "to Amend Section 1164 of the Revised General Statutes, as Amended by Chapter 8413, Laws of Florida, Acts of 1921, as amended by Chapter 9119, Laws of Florida, Acts of 1923, as Amended by Chapter 10026, Laws of Florida, Acts of1925, relating to the Levy, Assessment and Collection of Drainage Taxes in the Everglades Drainage District, toLegalize, Validate and Confirm the Levy and assessment ofDrainage Taxes for the years 1925 and 1926, Levied and Assessedunder the Provisions of Said Chapter 10026, etc." (Italics supplied.)

Section 2 of this Act provides that all taxes levied and assessed under the provisions of the Act and under the laws of which this Act is amendatory, be and the same are hereby legalized, validated and confirmed, including the taxes for the years 1925and 1926, thus carrying out the purposes to confirm the taxes levied and assessed under Chapter 10026, as expressed in the title to the Act.

"To confirm is to make firm or certain; to give new assurance of the truth or certainty; to put past doubt. — Webster. Thus, 'confirmation of land titles' within the meaning of a statute requiring such confirmation, imports some title previously existing, and the confirmation only becomes conclusive of that which it concedes existed before. * * * It makes certain; gives new assurance; puts past doubt." Words and Phrases, Vol. 2, 1st Ed.

The enactment of Chapter 12017 makes certain and puts past doubt the purpose and intent of the Legislature in levying the tax provided for in Chapter 10026, and is a legislative recognition that the tax thus levied was intended to be effective whether additional bonds were issued, as authorized, or not. It seems to us that Chapter 12017 should set at rest the effectiveness of the tax levied under Chapter 10026, as being the tax that entered into and became a part of the irrepealable contract with refunding bond holders issued July 1, 1925.

Regarding the opinion of the learned Federal Judge in Rorick v. Board of Commissioners of Everglades Drainage District, 57 F.2d, supra, in which they expressed the view that the tax levy provided for in Chapter 10026 was not the acreage tax entering into the contract with holders of refunding bonds issued July 1, 1925, we would make the following observations:

It appears from the statement of the case, found at page 1050, 57 F.2d, that the court was considering a suit in equity, in which the complainants as bond holders were seeking injunctive relief against the Board of Everglades Drainage Commissioners and other officers, to restrain the effectuation of parts of Chapter 13633, Laws of Florida, Acts of 1929, and parts of Chapter 14717, Acts of 1931, which the complainants assailed, as impairing the obligation of their bond contracts, contrary to the United States Constitution, Article I, Section 10.

There is nothing in the statement of the case to indicate that they had before them any prayer for a mandatory injunction, to compel the levy of a tax, which the court found to be applicable, nor does it appear that there was any prayer that they determine the question of the proper tax to be levied to meet the contract rights of the bond holders. It would seem, therefore, that the expressions in their opinion, as to the tax they found was applicable, was an expression of opinion regarding a matter that was not before them for adjudication.

The acreage tax authorized and levied under the provisions of Chapter 10026, Laws of Florida, Acts of 1925, and which was in force on July 1, 1925, when the refunding bonds were issued, is the acreage tax which the relators, as holders of such refunding bonds are entitled to have assessed and collected, and the necessary portion of the proceeds applied toward the payment of the interest on, and retirement of the principal of such bonds. United States, ex rel. Von Hoffman v. Quincy,supra; United States, ex rel. Wolff v. New Orleans (U.S.),supra; County Court of Rolls County v. Douglas (U.S.),105 U.S. 733, 26 L.Ed. 1220; State, ex rel. Pillsbury, Mayor of New Orleans, 26 L.Ed. 1090; Mobile v. Watson (U.S.), supra; Moore v. Otis (C. C. A. 8), 275 Fed. 747; Commissioners v. Rather,48 Ala. 433; State, ex rel. Dos Amigos, Inc., v. Lehman, 100 Fla. (Part 2) 1313, 131 So. 533; State, ex rel. Gillespie,et al., v. Carlton, et al., 103 Fla. 810, 138 So. 612.

It is contended by the respondents that the relators are not entitled to the relief sought through mandamus, because of laches. We do not think the delay evidenced in this case was such as would bar the bondholders from seeking to have the Board of Commissioners of Everglades Drainage District and the tax assessors of the counties affected, perform the duties required of them with reference to the levy and assessment of this acreage tax from drainage for the year 1932. It is true that under the law the board of commissioners were required to meet on the Second Tuesday in January, 1932, and prepare the lists of land subject to drainage tax, and it is true that writ of mandamus was not sought by relators until October 1st, 1932. However, the relators had the right to presume that the Board of Commissioners, as State Officials, would do as the law directed, and that they would send in such lists. We do not consider that the relators delayed such an unreasonable length of time after being convinced the board of commissioners would not act, as to charge them with laches, and exclude them from asserting their rights under their contracts as bond holders. Neither do we think the delay has, or will cause such confusion and disorder as is contended by the respondents. Under the provisions of Section 722, Revised General Statutes of Florida, 924 Compiled General Laws, any tax assessor is authorized and required if he discovers while making his assessment that any land has for any reason escaped taxation for any or all of the three previous years, he shall, in addition to the assessment of such land for that year, assess the same separately for such year or years that they may have escaped taxation, noting distinctly the year when such land escaped taxation.

This section has reference, of course to assessments of lands for State and county purposes. However it is, in Section 1167, Revised General Statutes of Florida, 1537 Compiled General Laws, provided as follows: "Except as herein specifically provided, all laws relating to State and county taxes in this State are hereby made applicable to the Everglades Drainage District."

The tax assessor is required under the law to assess omitted State and county taxes for three years back. There is no specific provision to the contrary in the law regarding drainage tax assessments. The assessor can certainly assess omitted lands when certified by the board of commissioners without causing undue confusion and disorder. We find nothing in the law to preclude the Board of Commissioners of Everglades Drainage District from preparing and certifying the lists of land subject to drainage tax at any time after the date fixed by Section 1167, Revised General Statutes, Section 1537, Compiled General Laws. If they fail to function in the performance of the ministerial duties required of them under the law, certainly the court can compel them by mandamus to meet and make the lists in the manner prescribed for three years back, and certify them to the tax assessors under the law governing the assessment of omitted lands for State and county taxes, which law, as we have shown, is made applicable by the provisions of Section 1167, supra, to drainage taxes. See also Hicks v. Cleveland (C. C. A., 4), 106 Fed. 459, and Padgett v. Post (C. C. A., 4), 106 Fed. 600.

We do not find any merit in the contention of the respondents regarding the right of the Legislature to determine and fix the rate of acreage tax according to benefits received, as it is claimed was done in the enactment of Chapter 14717, Laws of Florida, Acts of 1931. The Legislature could not, in violation of the contract rights of these relators acquired in 1925, so change the amount of tax prevailing when the bonds were issued as to diminish or destroy the source of revenue to pay the bonds for the purpose of fixing the tax according to benefits received. Besides, it is not for the Board of Commissioners of Everglades Drainage District, but for the taxpayers therein, to raise this question, even if it can be raised as against the relators as holders of bonds issued July 1, 1925.

The personnel of the Board of Commissioners of Everglades District at the time the refunding bonds held by the relators were issued, is different from the present personnel. When the refunding bonds of 1925 were issued the board of commissioners consisted of five high State officials. Now it consists of five taxpayers residing within the district. The fact that the personnel of the board has changed, is no reason why the board as now constituted, should not perform their statutory duties, in connection with the acreage tax applicable under the law for the payment of the bonds now in question and the interest thereon. It is the opinion and holding of the court that the motion to quash the alternative writ of mandamus as amended, should be and the same is hereby denied, and it is further considered and ordered that a peremptory writ of mandamus issue, directed to the respondents, members of the Board of Commissioners of Everglades Drainage District, and to the respondent tax assessors of the counties named and described in the alternative writ of mandamus as amended, commanding and requiring the said members of the Board of Commissioners of Everglades Drainage District, in compliance with the provisions of Section 1167 of Revised General Statutes, forthwith to meet and make up for each of said counties a list of the lands in Everglades Drainage District lying in such county, and designating upon such list or lists the amount of taxes assessed against each parcel of land for the year 1932, under the provisions of Chapter 10026, Laws of Florida, Acts of 1925, and directing and requiring them, after publication of notice as required by said Section 1167, forthwith to cause such lists to be signed by the Chairman of the Board of Commissioners of Everglades Drainage District, and attested by the secretary thereof, and forward such lists when completed, in accordance with provisions of Section 1167, Revised General Statutes of Florida, to the tax assessors of the respective counties in which the lands lie, and commanding and directing the tax assessors of the respective counties named in the alternative writ of mandamus as amended, or their successors in office, to receive the said lists for their respective counties, and that each of said tax assessors enter upon the tax roll for 1933 of the county in which he is assessor, the tax or assessment shown in the list forwarded him by the Board of Commissioners of Everglades Drainage District under this peremptory writ, for the year 1932, against the lands in said list described, in the same manner as omitted taxes for State and county are assessed. And the respective tax assessors are further directed upon the completion of the tax assessment roll for 1933, to attach to their respective rolls, before delivery thereof to the tax collectors of their respective counties, the special warrant provided for in Section 1168, Revised General Statutes, for the year 1932 drainage tax, in addition to the drainage tax that may be assessed for 1933.

ELLIS and TERRELL, J. J., and BIRD, Circuit Judge, concur.

WHITFIELD and BROWN, J. J., dissent in part.

DAVIS, C. J., and BUFORD, J., disqualified.