
    Board of Public Instruction, Sumter County, et al., v. State ex rel. Elizabeth Morrison, an unmarried woman.
    192 So. 173
    Division A
    Opinion Filed October 14, 1938 .
    Rehearing Denied November 28, 1938
    
      
      Carroll W. Fussell, for Plaintiffs in Error;
    /. Franklin Garner an'd Whitfield & Whitfield, for Defendant in Error.
   Per Curiam.

On writ of error to judgment of Circuit Court awarding peremptory writ of mandamus to require levy of taxes to procure funds with which to pay off and discharge a judgment, the plaintiffs in error contend first that the County Superintendent of Public Instruction, the State Superintendent of Public Instruction and the State Board of •Education’ are necessary parties to the suit.

This question was not raised or presented in the lower court and is without merit.

Plaintiffs in error present a second question, as follows:

“Should Circuit Judge issue peremptory writ of mandamus requiring School Board and County Officers to levy, assess, collect and pay to relator on account of its judgment against School Board Two and one-half {2y2) Mills of Constitutional Ten (10) Mills Maintenance Tax for 1937-1938, and Five (5) Mills for the next ensuing Five Years without taking testimony on and notwithstanding the answer of the School Board showing that its Budget for 1937-1938 was already prepared and to change it would disrupt school operations for the ensuing year?”

So far as the record shows the judgment awarding peremptory writ of mandamus is based on a valid and binding-judgment entered by a court of competent jurisdiction against the Board of Public Instruction of Sumter County in a cause wherein' such judgment could legally be obtained. See Board of Public Instruction v. Knight & Wall Co., 100 Fla. 1649, 132 So. 644.

The allegations of the alternative writ show:

“That being the owner and holder of certain past due bonds and coupons of the Board of Public Instruction of Sumter County,'Florida, of the issue described as follows: 'The Board of Public Instruction for the County of Sumter Tax Anticipation Note’ Issue dated August 1, 1930, and said bonds being general obligations of the Board of Public Instruction of Sumter County, Florida, your relator did on or about the-28th day of January, A. D. 1937, institute a suit on the Common Law side of the Circuit Court of the Fifth Judicial Circuit of Florida, in and for Sumter County, upon said past due bonds or Tax Anticipation Notes, said suit being entitled Elizabeth Morrison, an unmarried woman’, v. The Board of Public Instruction for the County of Sumter; State of Florida, and being Case No. 1221, Civil of said Court; that on or about the 5th day of August, A. D. 1937, Relator herein, as Plaintiff in the aforementioned Common Law action did recover Final Judgment against the Defendant, The Board of Public Instruction for the County of Sumter, State of Florida, in the sum of $62,432.00, together with all costs, which said Judgment was entered and recorded in the records of the Circuit Court of the Fifth Judicial Circuit of Florida, in and for Sumter County, Florida, and a copy of said Final Judgment is attached hereto and'by reference made a part hereof as if herein set forth in extenso, and marked Exhibit ‘A.’”

The judgment should be affirmed on’ authority of the opinion and judgments in the cases of State Bank of Bowling Green v. Board of Public Instruction, 116 Fla. 184, 156 Sou. 319; Bervaldi v. State, 103 Fla. 902, 138 So. 380; Board of Public Instruction of Polk County, 118 Fla. 720. Without prejudice to the Circuit Court in the controlling its process to adjudicate a further spread of the levy on a showing made.

It is so ordered.

Affirmed.

Ellis, C. J., and Terrell and Buford, J. J., concur.

Wi-iitfield, P. J., and Brown and Chapman, J. J., concur in the opinion and judgment.

On Petition for Rehearing

Per Curiam.

In petition for rehearing it is contended that, “This Court in affirming the judgment of the lower court overlooked and failed to consider the fact that the lower court in its order for a peremptory writ, ordered, among other things, that 2j4 mills be set aside from-the 10-mill school maintenance tax for the payment of Relator’s judgment, for the 1937-1938 school year, whereas the new 1937 School Budget Act specifically provides that where the judgment cannot reasonably be paid from the current levy for the year 1937-1938, that it shall be omitted from that specific year’s budget, and in lieu thereof, a plan included in that budget for paying the judgment in the succeeding years and payment made in accordance with said plan in' the succeeding years.”

The question presented is moot because the school year 1937-1938 has expired. The final judgment and order for peremptory writ was entered on the 16th day of November, 1937. Respondents took writ of error.

So it is that the commands of the peremptory writ cannot be made to apply in full to the transaction' contemplated to occur in the school year 1937-1938. If full compliance with the commands of a peremptory writ is not possible because of lapse of time, then it follows that the alternative writ may be amended so as to apply to the then present or a future time and the peremptory writ' may then be likewise amended.

Leave is granted the Circuit Court to allow amendments of the writs in the court below on sufficient showing after notice and hearing. On application for amendment of writs the Circuit Court is not precluded from considering an'y matter of fact or of ‘law bearing upon the merits of the question as to how or in what manner the writs should be amended.

Questions of fact legallyr involved if duly presented must, of course, be determined on evidence submitted. Such eventuality as the necessity or expediency of a change in the requirement as to the amount of the levy for the school year 1938-1939 was contemplated in the language used in our original opinion, viz.: “without prejudice to the Circuit Court in' the controlling of its process to adjudicate a further spread of the levy on a showing made.”

Rehearing denied.

Terrell, C. J., and Wi-iitfield, Brown, Buford and Chapman, J. J., concur.

Thomas, J., not participating..  