
    State ex rel. H. A. Brosnaham, Chairman, Frank L. Parise, John N. Rauscher, T. C. McCoy and Ed. Creighton, as and Constituting the Board of County Commissioners of Escambia County, v. The Honorable Fred P. Cone, Governor, The Honorable J. M. Lee, State Comptroller, and The Honorable W. V. Knott, State Treasurer, as and Constituting the State Board of Administration.
    192 So. 797
    En Banc
    Opinion Filed November 10, 1939
    Rehearing Denied January 5, 1940
    
      
      R. H. Merritt and J. McHenry Jones, for Relators;
    
      George Couper Gibbs, Attorney General, and J. Compton French, Assistant Attorney General, for Respondents.
   Per Curiam. —

Upon petition of the County Commissioners of Escambia County, Florida, this Court issued an alternative writ of mandamus requiring the State Board of Administration “to pay over to the Board of County Commissioners of Escambia County, Florida, the surplus in the county account of Escambia County, Florida, that has accrued from the second gasoline tax from sales of gasoline made during the month of May, 1939, and during the month of June prior to the 9th day thereof, except sinking fund account, after such application as is provided by law, to be used by the Board of County Commissioners of Escambia County, Florida, in the construction and maintenance of roads within Escambia County, Florida,” or to show cause, etc.

■ Respondent moved to quash the alternative writ.

The pertinent statutory provisions are:

“Section 13. The State Treasurer shall keep a separate account for each county of any moneys received for the credit of each such county from the following sources:

“(a) Any tax upon gasoline and other like products of petroleum applicable to the bonds of such county and of any special road and bridge district therein, and

“(b) Any personal property tax on motor vehicles similarly applicable. (This item is now inoperative! See Sec. 13, Art. I, Constitution, adopted in 1930.)

“He shall also keep separate accounts as to each county and road and bridge district of moneys received for the payment of principal and interest on bonds as provided in Section 7 of this Act, herein sometimes termed sinking fund accounts. Ch. 14486, Acts of 1929.

“Section 14. (a) The Board of Administration shall annually before the first day of June of each year, carefully estimate the amount of money which will be available for the next fiscal year, for each of the accounts provided for by Section 13 of this Act.

“(b) In arriving at the amount of money available to meet the requirements of interest and principal or sinking funds of the bonds to which such accounts are applicable, respectively, the Board of Administration shall first apply any available funds in the sinking fund accounts, so far as may be necessary. If the moneys so applied are not sufficient for said purposes in any county, it shall then apply to meet such requirements, so far as may be necessary, any money to the credit or estimated to be available for the credit of such county from the gas tax or other moneys made available by law as a supplementary source of revenue. * * *

“Eighty per cent (80%) of any surplus in any county account, except sinking fund account, after such application as is provided herein shall be remitted to the State Road Department to be used by the said State Road Department in the counties which are entitled to such credit in the construction of any State road before that time designated in such counties, regardless of the preferential system, and/or in the purchase or lease of any toll bridge now or hereafter situated in said counties or any bridge constructed or to be hereafter constructed by such county or any State Agency therein, and which forms a link in any road now or hereafter designated a State road.

“Twenty per cent (20%) of any such surplus in any county account, except sinking fund account, after such application, shall be remitted to the county for the use of which such county account was created, and shall be used by such county only for the construction and maintenance of roads therein.

“No second gas tax funds, placed to the credit of the several counties, which funds are administered by the State Board of Administration, shall be used for any other purpose than as expressly provided in this Section 14, any law or laws of the State of Florida to the contrary notwithstanding.” Sec. 1, Ch. 19279, Acts of 1939, amending Sec. 14 of Ch. 15891, Acts of 1933, which amended Sec. 14 of Ch. 14486, Acts of 1929.

In State ex rel. Hill v. F. P. Cone, Governor, et al., 140 Fla. 1, 191 So. 50, it was held that Chapter 19279, Acts of 1939, amending Section 14, Chapter 14486, Acts of 1929, as amended by Chapter 15891, Acts of 1933, should be interpreted to operate prospectively and so as not to interrupt or interfere with any prior authorized uses of the second gas tax fund, before the effective date of the statute, June 9, 1939.

Subdivisions (a) and (b) of the above amended Section 14 require the Board of Administration (a) annually before June 1 of each year to carefully estimate the amount of money which will be available for the next fiscal year for each of the accounts provided for by Section 13 of this Act, viz.: “a separate account for each county of any moneys received for the credit of each such county (and each road and bridge district in such counties) from any tax upon gasoline applicable to the bonds of such county or of any special road and bridge district therein; (b) the Board of Administration shall first apply (to said county accounts) any available funds in the sinking fund accounts, and then “any money to the credit or estimated to be available for the credit of such county from the gas tax,” for the fiscal year.

The annual estimates required to be made as above by the Board of Administration in June, 1938, for county and road district bond accounts covered all of the second gas tax on sales of gasoline made in the State for credit to county accounts during the fiscal year from June 30, 1938, to July 1, 1939; the balance, if any, in such accounts to be remitted to the counties for road construction purposes under Chapter 15891, Acts of 1933.

Chapter 19279, Acts of 1939, changed the disposition of the surplus so as to require the surplus of “any money credited or estimated to be available to the county from the second gas tax” on sales of gas made 'during the last fiscal year, to June 9, 1939, to be remitted to the county as theretofore; and then such surplus from the second gas tax on sales of gas made on and after the date Chapter 19279 became effective by the Governor’s approval, June 9, 1939, to be remitted, 80 per cent to the State Road Department and 20 per cent to the counties respectively to be used as provided by law.

The motion to quash the alternative writ of mandamus is overruled.

Terrell, C. J., Whitfield, Brown,-Buford, Chapman and Thomas, J. J., concur.

On Petition for Rehearing

Per Curiam.- —

Chapter 15659, Acts of 1931, levies upon every dealer “a tax herein termed ‘gas tax’ of six (6c) cents per gallon for every gallon of gasoline or other like products of petroleum * * * upon which the tax herein provided has not been paid, or the payment whereof has not been assumed by a person preceding him in the handling of said lot of products, such tax of six (6c) cents per gallon being made up of two separate taxes, being

“First Gas Tax: A tax of three (3c) cents per gallon for the use of the State Road Department, as provided by law.

“Second Gas Tax: A tax of three (3c) cents a gallon to be apportioned as provided for in Section 8 of this Act. * * *

“On or before the fifteenth day of each month the dealer shall report, under oath, to the Comptroller the number of gallons of such products sold by him during the preceding month, and shall at the same time, pay to the Comptroller the amount of tax above mentioned. Such report shall show in detail the amount of products sold and delivered by such dealer in the State of Florida. * * * ” Sec. 1.

“All moneys derived from the gas taxes imposed by this Act shall be paid into the State Treasury by the Comptroller, as follows:

“First Gas Tax — Shall be paid into the ‘State Road License Fund’;

“Second Gas Tax — Shall be paid into the ‘State Roads Distribution Fund,’

“Which said special funds are hereby created for the reception of the same.” Sec. 3.

Section 8 provides for ascertaining and carrying to the Comptroller, as stated in the section, the total amounts of all moneys advanced, contributed, paid and expended by each county and by every special road and bridge district or other special taxing district for road and bridge purposes on roads now designated as State roads, in each county.

“(b) Said certificate shall be audited by the Comptroller, and, on being found correct, shall constitute the basis for the subsequent allocation and apportionment of the moneys to be derived from the second gas tax and from which the disbursement. shall be made to, or for the benefit of, such respective counties as herein provided, out of said ‘State roads distribution fund’ account. The Comptroller shall, each month, draw his order on the Treasurer of the State of Florida for the full net amount of moneys then with the State treasury in said ‘State roads distribution fund’ specifying the counties to which said money shall be paid, and the amount to be paid to each county, respectively, which said sums so apportioned to the counties are hereby appropriated monthly out of said ‘State roads distribution fund’ account. Said orders of said Comptroller shall be countersigned by the Governor, and shall be payable to the State Treasurer as ex officio treasurer of the counties, respectively, participating therein. The monthly schedule of installments to be so paid to or for such counties shall be computed, determined and paid out monthly in the following ratio, to-wit:

“1. The proceeds of one cent of the said second gas tax shall be apportioned to the credit of the several counties on the basis of area of said counties, that is to say, the apportionment shall be to the county in the proportion that the area of the county shall bear to the area of all the counties;

“2. The proceeds of one cent of the said second gas tax shall be apportioned to the credit of the several counties on the basis of population of the counties, that is to say, the apportionment shall be to the county in the proportion that the population of the county shall bear to the total population of the State, as determined by the last preceding general State or Federal census taken; and

“3. The proceeds of one cent of said second gas tax shall be apportioned to the credit of the several counties on the basis of contribution which has heretofore been made by the respective counties and/or special road and bridge districts or other special taxing districts of such counties to the construction of State roads, either through funds or the equivalent thereof of the county and/or special road and bridge district, or other special taxing districts, of such counties turned over to the State Road Department from time to time or through roads constructed by the counties and/or special road and bridge districts or other special taxing districts of such counties at county or district expense, and which were then or thereafter made a part of the existing State highway system.

“(c) Whenever the amount furnished, advanced, paid out, contributed or expended by any county and/or special road and bridge district or other special taxing district of such county, directly, or through the State road department, in the construction or building of such State roads, within such county has been returned to such county, such county shall continue to participate in the distribution of the three cents of the second gas tax as provided in subdivision (b) of this section, so that thereafter a sum equal to the sum provided to be returned to or for such county under this law shall be monthly paid into the State road license fund, and same is hereby monthly appropriated to the use of the State Road Department,” etc. Sec. 8, Ch. 15659, Acts 1931.

Section 9 contains the following: “All moneys provided for hereunder to be credited to the various counties of the State and so paid to the State Treasurer as ex efficio treasurer shall be administered by the board of administration, as provided by law.”

Chapter 14486, Acts of 1929, contains the following:

“For the purpose of administering the provisions of this Act and such money as is available by law, there is hereby created a Board of Administration, which shall consist of the Governor, who shall be president; the State Comptroller, who shall be secretary, and the State Treasurer, who shall be treasurer, who shall be members of the same ex-officio Sec. 12.

“All sums of money, securities, claims and proceeds from the collection of delinquent taxes by the State Treasurer from boards of bond trustees or boards of county commissioners of the respective counties or road districts located within said counties, as above provided, shall be held by him as county treasurer ex officio in separate funds, together with all additional monies received from said counties or road districts or from taxes collected within the same, and interest received upon deposits of the same, and the State Treasurer is hereby directed to set up a special account of each county or special road and bridge district from which he received money, showing the exact amount of money received, the source or sources from which received, the disbursement of the same and balances on hand. Said money, securities, claims and proceeds from the collection of delinquent taxes, shall be held for the special benefit of the county or district, respectively, by which it was turned over to him and used solely for the payment of the principal and interest of the bonds for the payment of which the same were levied.” Sec. 7.

Section 13 of Chapter 14486 is sufficiently quoted in the main opinion. Section 14 as finally amended by Chapter 19279, Acts of 1939, includes the following:

“(a) The Board of Administration shall annually before the first day of June of each year, carefully estimate the amount of money which will be available for the next fiscal year, for each of the accounts provided for by Section 13 of this Act.

“(b) In arriving at the amount of money available to meet the requirements of interest and principal or sinking funds of the bonds to which such amounts are applicable, respectively, the Board of Administration shall first apply any available funds in the sinking fund accounts, so far as may be necessary. If the moneys so applied are not sufficient for said purposes in any county, it shall then apply to meet such requirements, so far as may be necessary, any money to the credit or estimated to be available for the credit of such county from the gas tax or other moneys made available by law as supplementary source of revenue. * * *

“Twenty per cent (20%) of any such surplus in any county account, except sinking fund account, after such application, shall be remitted to the county * * *.”

Section 17 of Chapter 14486 contains the following: “The Board of Administration may invest any funds to the credit of any county or special road and bridge district in the hands of the State Treasurer as county treasurer ex officio, by and with the consent and approval of the board of county commissioners or other governing body of such county or special road and bridge districts, in any bonds or treasury certificates of the United States or bonds of any county or special road and bridge district in the State of Florida entitled to participate herein.”

When the amounts due the counties and districts therein are duly ascertained and certified to, and audited by, the Comptroller, as provided by Section 8, Chapter 15659, Acts of 1931, such amounts “shall constitute the basis for the subsequent allocation and apportionment of the moneys to be derived from the Second Gas Tax and from which the disbursement shall be made to, or for the benefit of, such respective counties as herein provided, out of said ‘State Roads Distribution Pund’ account.” Sec. 8 (b).

When the second gas tax levied by statute upon gasoline sold prior to June 9, 1939, is later paid into the “State Roads Distribution Fund” and then duly credited to county accounts, if there is “any surplus in any county accounts, except sinking fund accounts, after such application as is provided herein” (Section 14 as amended by Chapter 19279, Acts of 1939), such surplus is to be remitted to the county entitled thereto. There can be no surplus in any county accounts, except sinking fund accounts under Section 14 as amended by Chapter 19279, until “after such application as is provided” in Section 14(b) as amended by Chapter 19279, Acts of 1939, viz.: until all the amounts due to be allocated to a county under Section 8, Chapter 15659, Acts of 1931, 'are so allocated and applies to^ paying county and district road bonds or placed in, or invested for, the sinking funds to pay the bonds as they mature to the extent of the total

amount clue to the counties respectively, as provided by Chapter 15659, Acts of 1931, and by Chapter 14486, Acts of 1929, as amended by Chapter 15891, Acts of 1933, and by Chapter 19279, Acts of 1939.

County accounts under Sections 3, 4, 5, 6, 7, 14 of Chapter 14486, Acts of 1929, include all funds to be used in paying the principal and interest of the bonds to which the county accounts are applicable, viz.: amounts received from the counties, and also “any money to the credit or estimated to be available for the credit of such county from the gas tax or other moneys made available by law as a supplementary source of revenue.” Sec. 14, subdivision (b), Chapter 19279, Acts of 1939.

When the entire amount due a county and the districts therein is allocated and used in paying bonds or placed by investment or otherwise in the sinking fund to pay the bonds as they mature (see as above quoted from Section 17, Chapter 14486, Acts of 1929), then a surplus may exist in the count)' accounts to be divided 80-20 between the State Road Department and the counties, under Section 14 of Chapter 14486, as amended by Chapter 15891, Acts of 1933, and by Chapter 19279, Acts of 1939.

The county accounts and the funds therein have relation to the complete settlement of the amounts due the counties and districts under Section 8, Chapter 15659, Acts of 1931, before there can be any surplus in such county accounts. The statutes do not contemplate that there may be a surplus in the county accounts in any year until the entire amount due a county is paid and used in bond payments or in sinking fund cash or investments to pay bonds as they mature.

“The fiscal year shall begin on the first day of July and end on the thirtieth day of June in each and every year. (Ch. 151, Acts Jan. 14, 1853, Sec. 5; Ch. 10124, Acts 1929, Sec. 1; Ch. 10130, Acts 1925, Sec. 1.)” Sec. 1343 (10322) C. G. L.

The above statutory designation of the fiscal year is applicable to State officials and their duties, unless otherwise specially provided.

Taxes levied by statute on sales of gasoline are collected and disbursed or allocated by State officials.

If the amount of the second gas tax for the month of June, 1939, is shown by the reports of sales required by the statute to be made monthly, the proportionate amount of the tax on sales for eight days of the month may be calculated with certainty.

Rehearing denied.

Terrell, C. J., Whitfield, Buford and Ci-iapman, J. J., concur.

Brown and Thomas, J. J., concur in order denying petition for rehearing.  