State of Florida ex rel. John Nuveen, Relator, v. W. B Greer, R. E. Cantey, Arthur Corry, J. D. Bailey, George B. Gregory and T. E. Dickenson, Members of and Constituting the City Council, and J. P. Smith, Clerk of said Council of the City of Quincy, Florida, a Municipal Corporation, Respondents, 88 Fla. 249

Whitfield, P. J. In mandamus proceedings brought in this Court it is sought to require designated municipal officers of the Town of Quincy to levy a tax to. pay interest on, and ultimately to pay the principal of $10,000 of bonds issued in 1909 by the Town of Quincy under express statutory authority to issue such bonds “for the purpose of erecting school houses and maintaining a system of public education in said municipality.” Sec. 22, Chap. 5844 Acts of 1907.

See Validation Act, Chap. 6095, Acts of 1909. ' On motion to quash the alternative Writ it is in effect urged that it appears thereby that the bonds have been judicially held to be invalid and their payment enjoined and that the allegations of the Writ make it appear that the relator has no legal right to require, or the respondents no legal duty to perform, the official acts commanded by the Writ.

A Writ of Mandamus does not supersede legal remedies, hut rather supplies the want of a, legal remedy, therefore two prerequisities must, exist to warrant a Court in granting this extraordinary remedy; First, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce. Myers v. State ex rel. Thompson, 81 Fla. 32, 87 South. Rep. 80. See also State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South.

Rep. 213, 13 L. R. A. (N.S.) 320; 12 Ann. Cas. 359. The bonds in this case issued by the municipality were expressly and specifically authorized by statute. The Constitution provided that “the Legislature shall have power to * prescribe the jurisdiction and powers” of municipalities. There was and is no express provision of the Constitution making the issue of the bonds unlawful.

Their issue is not expressly forbidden by law and the purpose of the issue is not immoral or contrary to- law or public policy, but the purpose in authorizing- and in issuing the bonds was to facilitate public education in the municipality. The money for the bonds was received and used by the municipality for the erection of a public school building in the municipality as expressly authorized by the statute. Interest on the bonds was paid for several years.

Subsequently, the Supreme Court of the State at the suit of a taxpayer to enjoin tire issue of bonds by another municipality under similar statutory powers, decided that upon a consideration of all the pertinent provisions of the Constitution, a municipality as such could not be authorized by statute to issue bonds for public free school purposes in- aid of the uniform system of public free schools required by the Constitution to be maintained by the State, counties and school districts, particularly in view of the express organic provision that “any incorporated town or city may constitute a school district.” Brown v.

City of Lakeland, 61 Fla. 508, 54 South. Rep. 716. This was an implied organic limitation upon the express authority of the Legislature to' “prescribe the jurisdiction and powers” of municipalities as such, which implied limitation was developed by judicial construction and

interpretation, after the bonds here involved had been issued and sold and the proceeds used by the municipality for its benefit, pursuant to> express statutory authority. Thereafter a taxpayer of the municipality relying upon the decision referred to, secured an injunction against further payments of interest on the bonds. See Monroe v. Reeves, 71 Fla. 612, 71 South. Rep. 922. Mandamus is now brought by the holder of the bonds in due course, seeking a tax levy by the municipal authorities for the payment of the interest and the redemption of the. bonds.

Mandamus will not compel the tax levy and payment of the bonds or the interest thereon, for the reason that the bonds being illegally issued, it is not the duty of the municipal officers to pay them. Such payment of the bonds has been enjoined. But the holder of the bonds can recover in an action at law, on appropriate common counts, the money paid for the bonds with interest according to law. See. 19 R. C. L., p. 1032, Note 11; 5 McQuillin on Munic. Corp. Sec. 2349; 5 Dillon’s Munic. Corp. (5th ed.) Sec. 961. See also Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 South. Rep. 182.

In County Commissioners of Columbia County v. King, 13 Fla. 451, mandamus was utilized because the issue of similar bonds had been held valid by the Supreme Court when the bonds sought to be enforced were issued. In that case, the bonds being valid, there was a legal duty to pay them and mandamus was applied. Here the bonds are invalid and there is no duty to pay the bonds. But there would be a legal duty to pay a judgment duly obtained for the return of the money, with appropriate interest, that was received and used by the municipality.

Issuance of the bonds was not expressly forbidden and penalized and the municipality and the relator, bond holder, were not in pari delicto. Thomas v. City of Richmond, 12 Wall. (U. S.) 349, 20 L. Ed. 453. Neither party was at fault in the premises. The bonds were expressly authorized by statute and were issued as required by the statute. The proceeds were received by the municipality and used for its benefit. The implied limitation that was held by the Court to mahe the issue of the bonds contrary to organic law, was developed by judicial

interpretation after the bonds had been sold and the money had been used by the city for its purposes as expressly and specifically authorized by the statute. These circumstances clearly render the municipality liable for the amount of the money so received by it with interest. See Brill v. Washington Railway & Electric Co., 215 U.S. 527, 30 Sup. Ct. Rep. 177; Louisiana v. Wood, 102 U. S. 294. See 7 A. L. R. 346 and notes. In Morton v. City of Nevada, 41 Fed. Rep. 582, cited in 5 McQuillin on Municipal Corporations,

Section 2349, there was an express organic prohibition that made the debt as contracted contrary to law and void, and the proceeds were used for the benefit of a private corporation contrary to law and the action was barred by the statute of limitations. See Jarrolt v. City of Moberly, 103 U. S. 580, 26 L. Ed. 492.

The bonds having been issued contrary to law as judicially determined, it is not the legal duty of the municipal officers to levy taxes to> pay the interest on or the principal of the bonds as such, or to pay the indebtedness according to the tenor of the bonds; and correlatively, the bonds being illegal, the relator has no legal right to have them paid by the process of mandamus. Payment of a judgment duly obtained for the money received by the municipality would be a legal duty of the municipal officers,, which duty the relator could enforce by mandamus or other appropriate proceedings in due course of law.

In Pine Grove Township v. Talcott, 19 Wall. (U.S. 666, 22 L. Ed. 227, the action was in assumpsit to recover “the amount of bonds” that had been held to be invalid by the State Court but which were in effect held to be valid by the United States Supreme Court. In State v. Dickerman, 16 Mont. 278, 40 Pac. Rep. 698, mandamus was applied to* enforce payment by a county treasurer of the amount of a warrant duly issued on a contract held to be valid. See also Savage v. Sternberg, 19 Wash. 679, 54 Pac. Rep. 611, 67 Am. St. Rep. 751.

Chapter 9057, Acts of 1921, appears to be designed to authorize the municipality, notwithstanding the lapse* of time, to return with interest thereon the money received by the city for the bonds in question though there* appears to be a clerical error in the. date of the bonds named in the Act. The motion to quash the alternative writ is granted. West and Terrell, J. J., concur. Taylor, C. J., and Browne, J., concur in the opinion. Ellis, J., concurs in the conclusion.