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Isaac A. Stewart, whom we will refer to as the complainant, the owner of property and a taxpayer in Volusia County, Florida, filed his bill of complaint in the Circuit Court of Volusia County against the members of the Board of County Commissioners of said County of Volusia, individually and as constituting the said Board of County Commissioners, Samuel D. Jordan, Clerk, etc., Volusia County Fair Association, Inc., a corporation, Board of Trustees of Volusia County Fair, a corporation, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, individually and as constituting the members of "Board of Trustees of
Volusia County Fair", a corporation, and therein alleged substantially that the said County Commissioners, without authority of law, donated and paid out, as a gratuity, the sum of four hundred dollars of the public funds of Volusia County to Volusia County Fair Association, a corporation, to help in securing the operation of a county fair, a warrant for said sum having been issued by the Chairman and Clerk of the said Board; that in the budget prepared by said Board, an appropriation of $6,000.00 was provided for to be paid out of the agricultural fund to the said Volusia County Fair Association, and that it was out of said appropriation that said sum of $400.00 was paid; that at the regular session of the Legislature of Florida, in 1931, a bill was passed entitled,
"An Act requiring the Board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00) which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A.D. 1930, and to end on the 30th day of September, A.D. 1931."
the same being known and referred to herein as Senate Bill No. 910; that the same Legislature also passed a bill entitled,
"An Act creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, maintain and carry on annually a fair or exposition in said county, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said Act not to exceed One Mill on the dollar, and giving the said Board
of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said act and all funds derived from said tax or any other sources."
the same being known and referred to herein as Senate Bill No. 911 and that both bills were approved by the Governor on June 11, 1931; that pursuant to the terms of Senate Bill No. 910, the said Board of County Commissioners, had been requested by said Board of Trustees of Volusia County Fair, to pay over to them the sum of $6,000.00 which has been appropriated to Volusia County Fair Association, and that the defendants, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, were designated in Senate Bill No. 911 as such Board of Trustees; that although the complainant had objected personally to a number of said Board of County Commissioners against the payment of said sum, a meeting of said Commissioners had been called to be held on July 13, 1931, for the purpose of taking action and making payment of such money to the Volusia County Fair Association, and to include in their budget for the year 1931, such sum of money as may be required or demanded by the Board of Trustees of Volusia County Fair, and it was alleged upon information and belief that it was the intention of said Board of Commissioners to misappropriate the further sum of $6,000.00 by paying it over to the Board of Trustees of Volusia County Fair in accordance with the provisions of said Acts of the Legislature; that the appropriation to the Volusia County Fair Association was without authority of law, in that it was in violation of Section 9, Article X, of the Constitution of Florida, which provides that,
"The Legislature shall not authorize any County x x x x x x x to obtain or appropriate money for or to loan its credit to any company, corporation, association, institution or individual,"
and that the Legislature is without power to turn over
the administration of public funds or to expend or disburse the same in any way, except under and pursuant to law, by a duly commissioned officer of the State of Florida, or of the Counties of the State, for a valid County purpose.
Complainant alleged further, upon the information and belief, that said bills, 910 and 911, copies of which were attached to the bill of complaint, are each unconstitutional because it is beyond the legislative power to impose compulsory taxation upon the people of Volusia County; that said bill 911, is unconstitutional and void because it is not authoritative in nature, but is mandatory as to the requirement that the County Commissioners pay said sum of money arbitrarily and without defining any purpose for which it is to be used, that it is not within the power of the Legislature to directly levy or compel the levying by a county of an ad valorem tax for an exclusive local purpose, or to compel the appropriation of money by a county in which the State has no concern, that it mandatorily requires the appropriation of money to be expended by non-commissioned officers, designated as such, in violation of the requirements of the Constitution, and that it violates Section 25 of Article III, of the Constitution, which requires that the legislature shall provide by general law, for incorporating educational, agricultural, mechanical, transportation, mining, mercantile and other useful companies or associations as may be deemed necessary, but shall not pass any special law on any subject, and any such special law shall be of no effect.
The constitutionality of Senate Bill No. 911 is further attacked upon the grounds that, (a) it mandatorily requires the said Board of Trustees to acquire, purchase and take over in the name of the county, all property of Volusia County Fair Association, Inc., (at a sum not to exceed $83,000.00, and pledging the name and credit of Volusia County for the payment thereof), and to promote, maintain and carry on annually, a fair or exposition
in said county, and it also, mandatorily requires the Board of County Commissioners to levy a tax to raise funds sufficient to carry out the provisions of the Act, (b) it requires the Board of Trustees, in effect, County Officers, to be freeholders to be elected by districts and not by the County at large, (c) it names and designates the said officers, until an election provided for therein, in violation of the provision of Section 27, Article III, which provides for an election of officers by the people or appointed by the Governor, (d) it permits the holding of such offices after the next general election to be held in the State, (e) it — a special law — attempts to regulate and determine the compensation of certain officers provided for therein, (f) it provides that if the said Board of Trustees at the time of taking title to the said property, does not have on hand, funds sufficient to pay the purchase price in full, it is authorized and empowered to make and issue, interest bearing negotiable promissory notes in the name of Volusia County, for the deferred payment, and to secure the same by mortgage on all said property, or any parts thereof, (g) it is in conflict with Sec. 1486, Revised General Stats., Sec. 2191, Compiled General Laws of Florida, 1927, a general law which provides that,
"No contract shall be let for the work on any road or street, construction or building of any bridge, erecting or building of any house, and that no goods, supplies or materials for county purposes or use be purchased when the amount to be paid therefor by the county shall exceed $300.00 unless notice thereof be advertised once a week for at least two weeks in some newspaper of general circulation of the County, calling for bids upon the work to be done, and for goods, supplies or materials to be purchased by the county and requiring in each case the bid of the lowest responsible bidder shall be accepted unless all bids are refused because same are too high."
It is further alleged upon information and belief, that the Board of County Commissioners are about to levy
the millage provided in said act to be levied, for the year 1931, and that the said Board of Trustees intends to pay to themselves out of the funds so collected and paid out of the public funds of Volusia County, or to be raised by general taxation, the salaries and compensation provided therein to be paid to themselves for services as such trustees, unless restrained by order of the Court.
The complainant prayed for a temporary injunction, (1) restraining the members of the Board of Trustees of Volusia County Fair from paying to themselves or to one another, any salary or compensation for any services rendered, or to be rendered, in or about the performance of the duties prescribed by the Act creating the said Board of Trustees of Volusia County Fair, (2) restraining the said defendants from submitting "to the Board of County Commissioners of Volusia County, Florida, on the 1st Monday in July or at any time thereafter, any estimate of any pretended amount of money necessary to be raised for the purpose of carrying out the provisions of said act, to-wit, Senate Bill No. 911, as aforesaid, and that said Ben D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar and Davis Forster, and Saml. D. Jordan, Clerk of said Board, be enjoined from levying annually or at any time ad valorem tax for the purpose of carrying out the provisions of said Act," (3) restraining the Volusia County Fair Association and the individuals constituting the members of said Board of Trustees "from issuing any note under color of said Senate Bill No. 911 for the sum of $83,000.00 or any other sum of money in the name of the County of Volusia and State of Florida, for the purchase of any property or other assets of Volusia County Fair Association, Inc., a corporation organized and existing under and by virtue of the laws of the State of Florida, or in any wise pledging or obligating the County of Volusia and State of Florida to any extent whatsoever," and that
said injunction be made permanent. The bill was sworn to by the Complainant.
Notice of an application for a temporary injunction was filed in the cause, and thereupon the defendants, Volusia County Fair Association, Inc., and Trustees of Volusia County Fair, interposed certain objections to the granting of same, which objections, were under oath, and based, in substance upon the grounds that (1) the bill is multifarious, (2) that the Volusia County Fair Association, to whom the $6,000.00 appropriation was made, was chartered under the General Laws of Florida authorizing the formation of corporations not for profit, for the purpose of operating fairs, etc., and which law authorized the Board of County Commissioners to make contributions to such association, to assist in carrying out its purpose, and to expend in their discretion, such sums as they deem best in aiding the development of the agricultural, horticultural and live stock resources of the county, giving publicity to the same by aiding the exhibiting of such resources at or in connection with such fairs, including the offering and paying of premiums, (3) that Senate Bill No. 910 is in pari materia
with Senate Bill No. 911, and that said Senate Bill No. 911 specifically declares that the purchase and taking over of the property of Volusia County Fair Association, and the promoting, maintaining and carrying on annually of a fair, the levying of the tax and paying the same over to the Board of Trustees of Volusia County Fair, are all for a valid County purpose, (4) that it is shown to be the duty of the County Commissioners to pay over the said sum of $6,000.00 and that no showing is made that any of the defendants are about to issue the said promissory notes, (5) that the appropriation of money to the Volusia County Fair Association is not for the benefit of any such company, but for the benefit of the County, and its citizens, (6) that it is not true that the tax sought to be enjoined or the appropriation
of money sought to be enjoined, is one pertaining to an exclusive local affair, and in which State of Florida has no interest or concern, (7) that it is not true that the Board of Trustees of the Volusia County Fair are non-commissioned officers, but on the contrary, they have been commissioned in the form contemplated by the constitution of the State of Florida, (8) that Senate Bills numbered 910 and 911, do not authorize the County to loan its credit to any company, association or individual, (9) that the Board of Trustees of Volusia County Fair is nothing more than a subordinate public agency, established in aid of a public purpose, and that the provisions of Section 25, Art. 3, of the Constitution do not apply to such Board, and that Senate Bill No. 911 does not contain special legislation on subjects forbidden by said Section of the Constitution, (10) that the provision of Senate Bill No. 911 that the Board of Trustees of Volusia County Fair shall be freeholders does not curtail the Governor's power of selection so as to violate Section 27 of Article III of the Constitution, or any Constitutional provision relating thereto, (11) that Senate Bill No. 911 provides that in the event the naming of the Trustees of the Volusia County Fair should be judicially determined to be unconstitutional, that the Governor shall appoint such trustees and that the Governor has appointed the same individuals as are named in the Act, to be such Trustees, and they have been duly commissioned, (12) that the term of office of the said trustees is less than six years, and is not condemned by any provision of the State Constitution, (13) that Senate Bill No. 911 does not attempt to fix the fees of officers of the State or County, (14) that the said purchase money, notes and mortgage are not in effect bonds, and if they were, the provision authorizing the issuance of same, is separable from the remainder of the Act and may be eliminated without affecting the primary purpose of the Act, (15) that the legislature was competent to provide that the provisions
of Section 1486, Revised Gen. Statutes of Florida, Section 2191, Compiled General Laws of Florida, 1927, shall not apply to the Board of Trustees of the Volusia County Fair, nor to any contracts or agreements of said Board, or to any purchases or obligations thereof, and if held otherwise, such provision may be eliminated from the Act without affecting the purpose of the Act, and (16) that the bill is without equity.
The application for a temporary injunction was denied by Judge Daniel A. Simmons, sitting in Volusia County, Complainant then amended his bill of complaint by alleging further, upon information and belief, in substance, that the property referred to in Senate Bill No. 911, was acquired by the Volusia County Fair Association, Inc., by deed from Sidney A. Wood, as Executor and Trustee under the last will and testament of Asa D. McBride, deceased, for a recited consideration of Ten Dollars and other good and valuable consideration, but as a matter of fact, no consideration was paid therefor; that the said land was donated to the Volusia County Fair Association, Inc., and was in violation of the trust reposed in the said Executor, and Trustee, inasmuch as the said will only authorized him to sell or convey real estate of the estate for the purpose of converting the same into cash for re-investment and uses as directed under the terms of the will, and in consequence thereof, the Volusia County Fair Association, Inc., did not have title to the property, and that the same with the improvements thereon, constituted practically all of the property and assets of the said Volusia County Fair Association, Inc., and that unless restrained and enjoined by order of the Court, the said property will be acquired by the said Board of Trustees, and obligations will be issued in the name of the County of Volusia to the great and irreparable injury of said County and the taxpayers therein. The said amendment alleged further, that upon the day the bill of complaint was filed, the said
County Commissioners prepared their tentative budget for the fiscal year beginning October 1, 1931, and placed therein, an appropriation of $15,000.00 for the use and benefit of the said Board of Trustees of Volusia County Fair, which unless prevented by order of Court, will cause a millage to be levied upon the taxable property of Volusia County, in an amount sufficient to raise said sum of $15,000.00. Certified copies of the said deed and the said will were attached as exhibits and made a part thereof. The amendment was verified by the oath of the complainant as true, except as to matters stated on information and belief, and as to such matters, he believed them to be true.
The judge of the Seventh Circuit being absent from the Circuit, the bill of complaint and the amendment thereto, without notice to the defendants, was presented to Judge Paul C. Albritton of the Twenty-Seventh Circuit, who thereupon granted a temporary restraining order as prayed for in the bill. In support of the application, Tom Stewart, an attorney for the Complainant, made an affidavit before Judge Albritton, which averred,
"That the said defendant Board of County Commissioners have deferred making payment of the money mentioned in the bill of complaint to the Board of Trustees of Volusia County Fair, because of an insufficiency of money in the agricultural fund of Volusia County, which fund has now become adequate to pay the sum of $6,000.00 and that urgent demands are being made on said Board of County Commissioners to make said payment, and that his Excellency, the Governor of Florida, has signified to said Board his desire that it make such payment promptly or show cause of not so doing; that said Board of County Commissioners. has now under consideration the preparation of its annual budget, and is in almost continuous session from day to day in the preparation of same; that affiant believes that to give notice of this application for injunction would cause immediate payment of said sum and accelerate the injury sought to be enjoined; and believes that the injury apprehended will be done if an
immediate remedy is not afforded the complainant, and affiant fears that the Board of Trustees of the Volusia County Fair may take title to said Fair property and issue obligations in the name of Volusia County in payment thereof unless immediate relief is granted."
From the said order granting a temporary injunction the defendants, Ben. D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar, and Davis Forster, individually and as constituting the Board of County Commissioners of Volusia County, Florida, Volusia County, Saml. D. Jordan, Clerk of the Circuit Court, in and for Volusia County, Florida, and ex-officio Clerk of the said Board of County Commissioners for themselves and for the other defendants (naming them) on the 18th day of August, 1931, filed their notice and entry of appeal.
On the said 18th day of August, the Volusia County Fair Association, Inc., and the Board of Trustees of Volusia County Fair, said Board consisting of W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, jointly and severally moved the Court to dissolve the temporary injunction. Objection to the hearing was interposed by the complainant, but on 21st day of August, A.D. a hearing was held and an order was made by Judge Simmons, acting in the place and in stead of the Judge of the 7th Judicial Circuit dissolving the said injunction. From this order and the order of Judge Simmons denying the first application for a temporary injunction, the complainant appealed. The two appeals have been consolidated here.
It is settled here that the granting, continuance and modification of temporary restraining orders are largely discretionary, and the rights of the general public, if affected thereby, should be considered. Suwanee S. P. R. Co., vs. West Coast Ry. Co., 50 Fla. 609, 612, 39 So.2d 538; McMullen vs. Pinellas County, 90 Fla. 398, 106 So.2d 73.
Equity Rule 46 provides that in all cases of applications
for injunctions, the judge to whom presented, before granting the same shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined, and of the time and place where the motion is to be made, and no order shall be granted without such notice unless it is manifest to such judge from the sworn allegations in the bill or affidavit of the complainant, or other competent person, that the injury apprehended will be done, if an immediate remedy is not afforded, when he may grant instanter an order restraining the party complained of until the hearing or the further order of the court or judge.
"To justify the granting of an injunction exparte, and without notice, the allegations of the sworn bill or accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of from which the court can determine for itself whether the giving of notice will, or is likely to so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result." Godwin vs. Phifer, 51 Fla. 441, 41 So.2d 597, and other cases cited therein.
The allegations in a bill for an injunction must be clear, direct and positive, and must be verified by an affidavit, which also, must be direct and positive; and where any of the material allegations in the bill are stated upon information, there should be annexed to the bill, the additional affidavit of the person from whom the information is derived verifying the truth of the information thus given. If the direct and positive allegations of fact in the sworn bill as amended, are sufficient to constitute a ground for an injunction, and the refusal of the court to grant a temporary injunction upon the first application is not a bar to the making of the order upon the second application, the lower court should not be held in error for granting the order from which the first appeal was taken. We cannot
say that the showing was not sufficient to dispense with notice to the opposite parties of the second application for an injunction.
As a general rule, a second application will be denied merely on a showing that the first one was denied, unless complainant presents new and additional matter discovered since the former hearing but "the refusal of an application for a preliminary injunction does not bar complainant from making a second application, the decision being an act of discretion; and the Court may, in subsequent application, reach a different conclusion on the same or more convincing evidence. The court is not bound to adhere to its former ruling, nor is it bound, in case the former application was in another court, although it will generally do so by way of comity." 32 C. J. 366; Louisville N. R. Co. vs. Ky. R. R. Commission, 214 Fed. 465.
While a second application for an injunction, when based upon the same evidence or upon evidence which should have been presented upon the first application will generally be denied, it being a matter in which judicial discretion should be exercised, a court will not be held in error in granting a second application if a clear case is presented.
In McMullen vs. Pinellas County, supra, we held that "to the granting of every temporary injunction, two essential conditions must prevail. The bill must allege facts which appear sufficient to constitute a cause of action or ground for injunction, and, on the full showing made from both sides it must appear in the light of the circumstances, that the injunction is necessary to protect the legal rights of the plaintiff pending the litigation."
On an application for a temporary injunction, the chancellor may consider the merits of the bill. City of Apalachicola vs. Apalachicola Land Co., 9 Fla. 340, 70 A.D. 284; McKinney vs. County Commissioners Bradford County, 26 Fla. 267, 4 So.2d 855, McMullen vs. Pinellas County, supra.
That a citizen and taxpayer may enjoin an unauthorized expenditure of public money, is well established. Rickman vs. Whitehurst, 73 Fla. 152, 74 So.2d 205, Whitner vs. Woodruff,68 Fla. 465, 67 So.2d 110; Anderson vs. Fuller, 51 Fla. 380,41 So.2d 684, 6 L.R.A. (NS) 1026, 120 A. S. R. 170, Lassiter Co. vs. Taylor, 99 Fla. 819, 128 So.2d 14.
Likewise, equity has jurisdiction to enjoin the assessment and collection of an illegal tax levied upon real estate, which, if assessed and collected, will cast a cloud over the title of such real estate. Pickett vs. Russell, 42 Fla. 116,634, 28 So.2d 764.
We are, therefore, confronted with the inquiry; Are the facts alleged, either in the original bill, or the bill as amended sufficient on the showing made by both sides to justify the chancellor in the exercise of his discretion, in granting the second application for an injunction?
In all cases where there is no constitutional provision making an expense chargeable to the county, it must be for a county purpose in order to justify the legislature in authorizing a county to resort to taxation to defray it (Opinion of Justices, 13 Fla. 687; Board of County Commissioners Escambia County vs. Board of Pilot Commissioners,52 Fla. 197, 42 So.2d 697). There is no general rule for determining what is a county purpose (Commissioners of Duval County vs. Jacksonville, 36 Fla. 196, 18 So.2d 339). In Jordan vs. Duval County, 68 Fla. 48, 66 So.2d 298, we said:
"While the Constitution provides that 'the Legislature shall authorize the several counties * * * * * * * * in the state to assess and impose taxes for county * * * * * purposes, and for no other purposes,' the term 'county purposes' is not defined or amplified in the organic law. This being so, the Legislative power, in exercising its appropriate law making functions, may determine what is a 'County purpose', and the courts are not
authorized to render such determination ineffectual, unless some provision of the Constitution is violated, or unless the particular enactment can have no legal or practical relation whatever to any 'county purpose.' Where the courts may as in this case inquire into the existence of legislative power to enact a statute, the absence of power must clearly appear before the statute will be declared to be ineffectual for the purpose designed."
See also, Jacksonville vs. Bowden, 67 Fla. 181, 64 So.2d 769; Anderson vs. Ocala, 67 Fla. 204, 64 So.2d 775.
"A statute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it, can be, pointed out." Neisel vs. Moran, 80 Fla. 98, 85 So.2d 346.
Complainant insists that both Senate Bill No. 910 and Senate Bill No. 911 violate Section 10 of Article 9 of our Constitution, which provides that "the Legislature shall not authorize any county * * * * * to obtain or appropriate money for, or to loan its credit to any corporation, association, institution or individual." In the first stated contention, the county commissioners are in accord with complainant. On the other hand, the Volusia County Fair Association, Inc., and the Trustees of the Volusia County Fair contend that the Volusia County Fair Association, Inc., is a non-profit corporation, and any taxes levied to obtain funds to be paid to it are not levied for the benefit of a chartered company, but for the benefit of the people; that this court held in Earle vs. Dade County, 92 Fla. 432, 109 So.2d 331, that taxation for a fair and agricultural exhibition is for a valid county purpose, and that being true, they ask, "What valid objection is there to placing the money in the hands of a non-profit corporation to aid in the carrying out of such purpose?" It is not for the Court to say that such an act shall be upheld or declared invalid because they believe it to be wise or ill-advised, as the case may be. We are only concerned in whether or not it is denounced by some provision of the organic law.
In Earle vs. Dade County, 92 Fla. 432, 109 So.2d 331, we upheld a decision of the lower court, validating bonds of the County of Dade, the issuance of which was authorized by the Legislature under an act providing for the acquirement and holding of real property for fair and fairground purposes, and for the construction thereon of buildings and other structures necessary or desirable for the purpose of conducting fairs and agricultural exhibits, authorizing the County Commissioners to levy upon property an annual tax to be expended in carrying out such purpose and requiring them from time to time, upon the issuance of such bonds, to levy and cause to be collected, a tax sufficient to pay the interest thereon, and the annual installments of such bonds from year to year, as they mature. In speaking for the Court, Justice Brown said,
"The effect of these fairs has no doubt been to stimulate an interest in improved agricultural methods. It may also be true that the public benefits to be derived from such fairs are sufficient to authorize the Legislature to place the expense thereof upon the public rather than upon a few individuals who have the public spirit to promote and organize such enterprises. As to this feature of the act in question, though somewhat paternalistic in its nature, we are not prepared to say that the Legislature has exceeded its powers or come in conflict with any constitutional restriction. This Court has held that the Legislature, in exercising its appropriate law making functions, may determine what is a county purpose within the meaning of Section 5, Art. 9, of the Constitution, and the courts are not authorized to render such legislation ineffectual, unless some other provision of the Constitution is violated, or unless the particular enactment can have no practical or legal relation whatever to any county purpose. * * * * * * * * * * * If the state has the power to establish and operate a state agricultural department, or provide for a commissioner of agriculture, it would appear that it might also, by proper legislation, authorize a county, a political subdivision and agency of the state, to promote the local agricultural interests of the county by acquiring the
property and constructing the buildings necessary to the conduct of free public county fairs in the particular county." (Italics supplied).
Senate Bill No. 910 does not direct for what purpose the said sum of $6,000.00 shall be used, but merely requires the County Commissioners to pay it over to the Board of Trustees of the Volusia County Fair.
Senate Bill No. 911 declares that the purchasing and taking over of the property of Volusia County Fair Association, Inc., the promoting, maintaining and carrying on annually of a Fair or Exposition in the county, and the levying of a tax by the County Commissioners in order to carry out the provisions of the act, "are all for a valid County purpose."
While the constitution provides that the powers and duties of county commissioners are prescribed by law (article 8, section5, Constitution of Florida), this particular mandate of the Constitution is not violated by the provisions of said bill, that makes it the duty of the Board of Trustees of the Volusia County Fair, to make and submit to the Board of County Commissioners an amount of money necessary to be raised for the purpose of carrying out the provisions of the act, and give to the said Board of Trustees of Volusia County Fair, the supervision and control of "all moneys that may be raised by the tax" as therein provided. County Commissioners have only such authority as is conferred by statute (Baden v. Ricker,70 Fla. 154, 69 So.2d 694; Stephens vs. Fulch, 73 Fla. 708,74 So.2d 805), and administrative duties pertaining to the affairs of a County may be conferred by law upon officers other than the County Commissioners (State ex rel. Buford vs. Daniel, supra).
The power of the Legislature to pass laws creating County Officers, other than those provided for in the constitution, is "absolute unless restrained by some constitutional
provision." (State ex rel. Bryan, 50 Fla. 293, 376,39 So.2d 929).
"All persons by authority of law intrusted with the receipt of public money, or through whose hands such money may pass to the treasury, are 'public officers', whether the service be general or special, transient or permanent." x x x x x x x x x x.
"Section 27, article 3 of the State Constitution means that when not otherwise provided in the Constitution the executive and administrative governmental functions of the state and counties shall be performed by officers who shall be elected by the people or appointed by the Governor, and that the duties and compensation of such officers shall be fixed by law. Section 7, article 8, requires that such county officers shall be commissioned by the Governor, and that before being commissioned they shall file with the secretary of state a bond to be approved by the county commissioners and by the comptroller, Section 14, article 4, provides that all commissions shall be in the name and under the authority of the state of Florida, sealed with the great seal of the state, signed by the Governor and countersigned by the secretary of state. Section 2, article 16, requires every officer to take the prescribed oath. Section 7, article 16, provides that the Legislature shall not create any office, the term of which shall be longer than four years." Dade County vs. State, 95 Fla. 465, 116 So.2d 72, 76.
We are impelled to the conclusion that the lower court committed no error in granting the order temporarily restraining the Board of Trustees of Volusia County Fair from issuing any note under color of Senate Bill No. 911, for the sum of $83,000.00, or any other sum of money in the name of Volusia County, for the purchase of any property or other assets of Volusia County Fair Association, Inc., or otherwise pledging or obligating the said County to any extent whatever.
Since no one other than the Board of Trustees of Volusia County Fair is authorized to perform the duties attempted to be conferred by the said Senate Bill No. 911 upon the said Board of Trustees, and the expressed purpose of the
levy of the ad valorem tax is to carry out the provisions of the act, and such provisions as we have seen cannot be carried out because said Board of Trustees are powerless to act for the county, it follows that the levying of the annual tax on all taxable real and personal property in the county should not be made. We hold therefore, that the lower court did not err in granting an order temporarily restraining the members of the Board of County Commissioners from levying an ad valorem tax for the purpose of carrying out the provisions of Senate Bill No. 911.
We will now take up the appeal of the complainant from the order denying a preliminary injunction upon the first application, and (2) from the order dissolving the temporary injunction granted by Judge Albritton. In view of the fact that we have upheld the order granting the injunction upon the second application, we deem it unnecessary to discuss the propriety of the Court's action upon the first application of complainant for such injunction. If error was committed in denying the application when first made, it was corrected when the order for the injunction was made upon the second application therefor.
When the order dissolving the injunction was made, an appeal had been entered by the County Commissioners, and the Clerk, for themselves and for their co-defendants. This notice and entry of appeal having been filed and duly recorded as required by law (Sec. 4904 (2172) Compiled General Laws of Florida, 1927) it gave to the appellate court jurisdiction of the cause and also of the appellants and appellee. Stovall vs. Stovall,77 Fla. 116, 80 So.2d 744.
The defendants, who voluntarily appealed, had the right to join their co-defendants, who were also affected by the order, as parties appellant. (Rabinowitz vs. Houk, ___ Fla. ___, 129 So.2d 501, Hay vs. Isletts, 98 Fla. 1026, 125 So.2d 237; Guaranty T. T. Co. vs. Thompson, 89 Fla. 35, 103 So.2d 110.)
It is a general rule that when an appeal is perfected,
the cause becomes one for the cognizance of the appellate court, and for that court alone. The authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject matter of the appeal, until the appeal is heard and determined. 3 C. J. 1252, 1255; 2 Enc. P. Pr. 332. See also Holland vs. State, 15 Fla. 549.
Furthermore, where the defendants are so connected that the rights of one cannot be determined without affecting the rights of the others, and an appeal is lawfully taken by one defendant, the trial court pending the appeal, cannot take any steps in the case. 3 C. J. 1261; 2 Enc. Pl. Pr. 334.
This court has said that "When jurisdiction of appellate court attaches, it is exclusive as to subject covered by appeal." Wiley v. W. J. Hoggson Corporation, 89 Fla. 446,105 So.2d 126.
By applying the rule just stated to this case, the lower court was without authority to make the order dissolving the injunction at the time it was made, and for that reason the said order should be and the same is hereby reversed.
A supersedeas is not essential to the acquisition of or to preservation of appellate jurisdiction. Wiley v. W. J. Hoggson Corporation, supra.