City of Orlando v. Giles

51 Fla. 422

• Court: Supreme Court of Florida
• Decided: January 15, 1906
• Status: Published

Opinion

Hocker, J.,

(after stating the facts.). The assignments of error are: 1st. The court below erred in making the decree of reference to ascertain and report an equitable assessment thereon.

2nd. The court below erred in not making a decree of foreclosure and sale in favor of the complainant for the-full amount of taxes claimed, with interest and costs,-including the City Solicitor’s fees.

The City -of Orlando was incorporated under the general laws for the incorporation of cities and towns, and subsequently by Chapter 3629 laws of 1885, its government was legalized. By Chapter 3786, Laws of 1887, the city was authorized to levy taxes, and assess property. The fourth section -of this act provided that real estate should be assessed to the owner or owners, and as “unknown,” when the assessor after proper effort should fail to ascertain the owner. The fifth and sixth sections provided for reviewing the assessment roll by the assessor and city council, and that the city council should meet at the Council Chamber on the second Monday in September of each year for the purpose of equalizing assessments of real estate and for hearing all persons who might be aggrieved by assessments and gave it authority to change the value of real estate.

This act seems to have continued in force until 1899, when Chapter 4879, Laws of that year was passed. The title of this act is: “An Act Relating to the Assessment, Levy and Collection of Taxes by the City of Orlando,” and repealed all conflicting laws. By its terms (section 20) it was to take effect on January 1st, 1890. By sections 6 and 7 of this act provision is made for equalizing assessments, and for objections by property owners and others, either orally or by filing them with the City Clerk. The methods of enforcing the tax in the general revenue law (1895) were to be pursued as far as practicable. In 1903, the Legislature passed Chapter 5317, laws of that year, the title of which is: “An Act to Provide for- the Assessment and Collection of the taxes for the city of Orlando, and for the collection of the back taxes and Tax Sale Certificates of said city.” This act was approved by the Governor April 30th, 1903, and by its terms went into immediate effect on the approval.

The sixth section provides for the hearing, of objections to assessments and for reviewing them by the City Council.

The tenth section provides: “All taxes on the assessment roll shall be due and payable on the first day’ of September in each year, or as soon thereafter as the assessment roll shall come into the hands of the tax collector, of which he shall give notice by publication at least once in some newspaper published in the city. The collection of all such taxes remaining due and unpaid on the first day of January thereafter shall be enforced in the manner hereinafter provided, and interest at the rate of twelve per cent per annum from the date of said publication of notice by the tax collector shall be added thereto and collected as part of the tax.”

The eleventh section provides that all taxes on real and personal property shall be a lien superior to all others, and shall relate back to the first day of January of the year for which they are assessed and levied. The taxes on real property shall be and remain a lien until paid, and shall not be barred by any statute of limitations.

The thirteenth section contains the following provision: “If the taxes on any real estate shall not be paid before the first day of January next after the troll shall have come into the hands of the tax collector, he may at any time thereafter make from the roll a copy of any assessment and tax thereon remaining unpaid, showing the assessment of any lot, parcel or tract of real estate as the same appears upon the roll with the tax which he shall certify to be a true copy from the roll, and shall deliver the same to the city solicitor of the city of Orlando for collection; which certified copy shall be prima facie evidence of the contents of the assessment roll and of the levies made theron, and of the regularity and validity of all the proceedings on which the same is based, in all suits to enforce the payment of the lien of such taxes as may appear upon the said certified copy, and the tax collector shall, upon the request of the city solicitor, make out and deliver to him a certified copy of any such assessment or assessments remaining unpaid on and after the thirty-first day of December in any year. The city council also may direct the tax collector at any time after the first day of January in each year, either by resolution or by ordinance, to make out and deliver to the city solicitor such copy or copies, and may also in like manner direct the city solicitor to proceed upon the same to enforce the payment of the tax or taxes. The tax collector upon delivering any such copy to the city solicitor, shall enter upon the assessment on the roll that it has been certified to the city solicitor, with the date of delivery, and thereafter the collection of such tax shall he made by the city solicitor, and not by the tax collector.

The city solicitor upon receiving any such certified copy as aforesaid, may and when directed by the city council shall bring in the Circuit Court for Orange county a bill in chancery to foreclose the lien of the taxes so shown to be due and unpaid, which bill shall allege the city’s claim of lien against the real estate described, and shall be brought in the name of the city of Orlando as plaintiff against the person named as owner of the real estate on the said certified copy, if any person be named as owner, and such other persons as the city solicitor may know, or have satisfactory reason to believe to be owners of or interested in such real estate or to have any right thereto or lien thereon except as tenants.”

The fourteenth section provides that no assessment and no assessment roll under this act shall be set aside or in anywise invalidated by any court for any error, defect, informality or omission which shall not amount to a want of due process of law under the constitution of this State or of the United States, nor shall any assessment or any assessment roll be ,set aside, or in any wise invalidated for any error, defect, informality or omission whatever prior to the expiration of the right of petition, if the owner or party interested shall have failed to petition the city council as hereinbefore provided.

The fifteenth section gives the City Solicitor 5 per cent, on all taxes collected by him without suit, and in suits where the city prevails he is entitled to a reasonable attorney’s fee to be taxed as part of the costs which shall be regarded as further penalties for nonpayment of taxes within the time prescribed by law.

The seventeenth section of said act is as follows: “The assessment roll of the. city of Orlando for the year 1902 and all assessments thereon are hereby validated and confirmed, and the same shall not be set aside or in anywise invalidated for any error, defect, informality or omission which shall not amount to a want of due process of law under the Constitution of this State or the Constitution of the United States. No tax sale shall be held to collect the unpaid taxes thereon but said taxes shall be a lien until paid, without limitation, and the proceedings to enforce the payment of the said taxes and to foreclose their lien shall be as hereinbefore provided in this act. The time for the payment of the said taxes is hereby extended to and including the 30th day of June, A. I). 1903, after which date a certified copy of the unpaid assessments and taxes on real estate on the said roll shall be delivered to the City Solicitor with the same effect and in the same manner as is hereinbefore provided and the City Solicitor shall with all convenient speed proceed to collect the same with costs as is provided in this act for the collection of taxes levied under the authority of this act.”

The eighteenth section is as follows: “The assessment rolls of the city of Orlando for the year 1899, 1900, and 1901, with all assessments thereon and the tax sales of the city in the years 1900, 1901 and 1902 based thereon are hereby validated and confirmed and the same shall not be set aside or in anywise invalidated for any error, defect, informality or omission which shall not amount to a want of due process of law under the Constitution of this State or the Constitution of the United States. The tax sale certificates issued at said sales to the city and .still held by it are hereby declared to be liens on the properties described in such certificates respectively without limitation and‘the city shall not be entitled to take possession of the properties bought by it at such tax sales, nor shall it be required or permitted to bring .suit for the recovery of any of the lands so bought by it, but the lien of the said certificates shall be enforced in the manner provided by this act as to the liens of taxes assessed under the authority of this act. The time for the taking up of mid certificates is hereby extended to and including the 30th day of June, A. D. 1903, after which date said tax sale certificates shall be delivered to the City Solicitor and the City Solicitor shall proceed with all convenient speed to collect the same with costs as is provided in this act for the collection of taxes levied by authority of this act. Such certificates shall be prima facie evidence of the regularity and validity -of all the proceedings on which the same are based in all particulars which may not be validated by this section.”

The twenty-first section provides that “Nothing in this act contained shall impair the validity of any assessment of taxes by the city prior to the taking effect of the same.”

The twenty-second section repealed all conflicting laws so far as they affect the said city.

Let us now examine the questions presented in the light of the rule that where a cause is set down for hearing on the bill and answer, all matters well pleaded therein, responsive to the bill are to be taken as true.

It will be noticed that the answer does not question the constitutionality of sections 17 and 18 of Chapter 5317 Laws of 1903, except that the act “imposes additional burdens in the way of attorneys’ fees and costs of collecting assessments made prior to the enacting of said! law.” The seventeenth section validated and confirmed the assessment for 1902. The eighteenth section validated the assessments for 1899, 1900 and 1901, and also the tax sales of the city in the years 1900, 1901 and 1902, and made the latter liens on the property described to be enforced as liens of taxes assessed under the authority of' this act, and prima facie evidence of the regularity and' validity of all proceedings in which the same are based in all particulars which may not be validated by this section.

This court has held in several cases that the Legislature has power to validate and legalize assessments and levies of taxes which but for such legalizing action would be irregular and invalid. Smith v. Longe, 20 Fla, 697; City of Jacksonville v. Basnett, Id. 525; Parker v. City of Jacksonville, 37 Fla. 342, text 353, 20 South. Rep. 538. In Middleton v. City of St. Augustine, 42 Fla. 287. 29 South. Rep. 421, second headnote, the law is thus stated: “The rule in respect to .statutes curing defects in legal proceedings where they amount to mere irregularities, not extending to matters of jurisdiction, and in the absence of constitutional limitations, is that if the thing wanting, or which failed to be done and which constitutes the defects in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute; and if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.” Potter v. Lainhart, 44 Fla. 647, 33 South. Rep. 251; Givens v. Hillsborough County, 46 Fla. 502, 35 South. Rep. 8; Cooley’s Const. Lim. (7th ed.) 544; Am. & Eng. Ency. Law (2nd ed.) 945 and notes—946.

,In the case of People v. Goldtree, 44 Cal. 323, the court on page 325, says: “It will readily be conceded that the Legislature possesses the 'power to pass curative Acts, by which the various acts and proceedings of the officers and Board charged with the levying and assessing of taxes, are rendered valid and legal, notwithstanding that irregularities and errors have intervened; and the cases are quite harmonious on the point in other States as well as this. There are, however, defects which are mostly either of a jurisdictional character, or those which become such by reason of some constitutional provision, which are beyond the reach of curative acts. It is impossible to draw a well defined line between the classes of defects which may, and those which may not, be remedied by curative legislation; nor are the authorities on the subject reconciliable. There are defects, which, under our Constitution, are incurable by any subsequent legislation—such as an assessment of property situated without the Assessor’s county or district; an assessment made by the Board of Equalization; the exemption of particular property or a particular person’s property from taxation; the levying of different rates of taxation upon different species of property; and a judgment for the recovery of taxes rendered in a case in which the court had not acquired jurisdiction of the person assessed; and the enumeration might be extended. In those instances, the defect consists of a want of power or jurisdiction in the officer or tribunal assuming to act in the matter; and we think it may safely.be laid down as a rule in these matters, that whenever the officer had no power or jurisdiction to do the act in question, and not that in its performance he did not pursue the law in respect to time, mode, or some other particular, the act is void, and .subsequent legislation cannot cure the defect.”

In the latter part of the 3rd note pp. 545 and 546, Cooley’s Const. Lim. supra, it is said “the general rule is undoubted that a sale for illegal taxes cannot be validated,” and the authorities quoted sustain that position. We think this is a sound position, for by the sale the owner is divested of his property and the act of validation cuts him off from defenses which otherwise would show the sale void, and such act of validation would not be due process of law. But no such principle applies to the validation of assessments for taxes, which after validation the owner has opportunity to pay or tender as he had under this act. Castillo v. McConnico, 168 U. S. 674, text 680 et seq., 18 Sup. Ct. Rep. 229; Turpin v. Lemon, 187 U. S. 51, text 58, 23 Sup. Ct. Rep. 20. Applying these principles we are of opinion that all the objections interposed in the answer to the relief asked by the bill are met by the validating act, so far as they are tenable, except that said act in so far as it undertakes to validate sales under previous assessments, which are shown to have been void because not made to the true owner of the property is unconstitutional. Daniel v. Taylor, 33 Fla. 636, text 645, 15 South. Rep. 313, and cases cited. In other respects it seems to us to be constitutional. As to the assessments themselves, it appears that the city had jurisdiction to assess and tax the property involved; that the assessor did attempt to make an assessment, and it does not appear that the taxes have been paid or tendered. What we have said will apply to the alleged inequalities and discriminations in the assessments. The answer does not allege that the true owners of the property ever attempted to have the assessment equalized by application to the town council and no fraud is alleged. The alleged inequalities and discriminations are not clearly set up in the answer, because it is not shown what, if any, was the cash value of the bank stock. It may have been worth less than par. But if they existed, they might have resulted from the ignorance or bad judgment of the assessing officer, and might have been corrected on a timely application by the owners of the lots herein involved, to the City Council, as a reviewing board, for which review all the acts of the legislature we have been considering, provided. There is a general allegation in the answer that defendants made repeated efforts to have the assssments reduced, but it wholly fails to ¡state to whom, or when such applications were made. This allegation is not sufficient to show an application to the assessor or town council such as is contemplated by the statutes.

In 2 Cooley on Taxation (3rd ed.) p. 1382, it is said: “The courts of either common law or of equity are powerless to give relief against the erroneous judgments of assessing bodies except as they may be specifically empowered by law to do so.” And on page 1459 Id. it is said: “A tax founded on a fraudulent assessment will be enjoined. An assessment is not fraudulent merely because of being excessive, if the assessors have not acted from improper motive; but if it is purposely made too hi,gh through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judgment of all competent persons, or through the adoption of a rule which is designed to operate unequally upon a class and to violate the constitutional rule of uniformity the case is a plain one for the equitable remedy by injunction. So is any case in which a tax is rendered unequal or unfair by fraudulent or reckless conduct of officers, or in which the party is deprived by like practices of important rights which the law intends to secure to him, such for instance as the right of appeal from an assessment, or to be heard by the board of review before his assessment should be raised. But mere irregularities in the proceedings of tax officers do not make out fraud, or even give .evidence of it. And fraud must be alleged and proved; all presumptions are against it.”

In Price v. Kramer, 4 Colo. 546, it was held: “If one has failed to make the statutory return, and to appeal to the board of equalization he can have no remedy in the courts.”

In 2 Cooley on Taxation (3rd ed.) pp. 1386-8, it is said: “the general rule is that if one fails to appeal to the statutory board of review, he can have no remedy in the courts”-—quoting a large number of cases in note 2, p. 1388.

In the case of Jackson County v. Thornton, 44 Fla. 610, 33 South. Rep. 291, this court held that where taxpayers do not avail themselves of the privilege afforded by law of being heard before the equalizing board as to valuations of their property they have no ©round for alleging in a proceeding under section 1542 Revised Statutes of 1892 that the mode by which the assessor arrived at his valuation renders the assessment void.

The answer does not allege that the officers of the city of Orlando acted fraudulently in making the assessment objected to, nor facts which of themselves clearly show fraud.

The objections made by the answer to Exhibits D & E. of the bill we do not think tenable. At the bottom of each one on the left side, is the name “Louis C. Massey, City Solicitor.” If any address is required by the statute this is sufficient.

The defense set up in the answer that the certificates of sale attached to the bill are not liens on the property of the defendant Nannie B. Giles, and that if the city acquired any rights under them, the same had merged into a title on the 7th of July, 1904 and prior thereto, and that the city should not be allowed to foreclose said certificates, we think is untenable in so far. as these certificates represent the amount of the taxes assessed. We do not think that the appellees are liable for any costs incurred in connection with the making of said sales, for reasons which have been given. But upon questions of the legality of a change in the method of collecting delinquent taxes and of imposing the costs of collection, including solicitor’s fees, and of the right of the city to waive the rights given by the sale, the case of League v. Texas, 184 U. S. Sup. Ct. Rep. 156, is squarely in-point. It was there held that all these things might be done by statute, without invading any constitutional right of the owner of the land subject to taxation. In fact the statute favors the land owner by giving him further time to pay the taxes, and having been accepted by the city, as this suit shows whatever rights it had under the sales, have been waived.

We are of the opinion that the court below erred in making the order appealed from, and that a decree should have been entered in favor of the city for the amount of the taxes, as assesed, with legal interest and the costs of foreclosure, including a reasonable attorneys’ fee, and referring the case to a master'to take testimony upon these matters. Upon the filing of this report, after the expiration of the time proyided by the rules, a final decree should be made in favor of the city for the amounts found to he due, containing the usual provisions in a decree of foreclosure.

The order appealed from is reversed with directions for such further proceedings as may be consistent with this opinion.

Taylor and Parkhill, JJ., concur. Shackleford, O. J., and Cockrell and Whitfield, JJ., concur in the opinion.