Jones v. the City of Arcadia

3 So. 2d 338, 147 Fla. 571, 1941 Fla. LEXIS 1325

• Court: Supreme Court of Florida
• Decided: June 27, 1941
• Status: Published

Opinions

Buford, J.

Two suits were filed by the City of Arcadia in the circuit court in and for DeSoto County, Florida, one against Mourning Jones and C. O. Johnson and the other against Mourning Jones and C. A. Lindsey Bronson, to foreclose certain tax certificates evidencing liens for unpaid municipal ad valorem taxes for the years 1926 and 1936 inclusive. The suits were consolidated. On final hearing decree was entered in favor of plaintiff.

The defendants interposed motions to dismiss and the defendant Jones interposed counterclaim. Motion to dismiss was denied. Counterclaim was stricken. Motions were amended and again stricken. Answers and counterclaims were filed. Portions of the answers were stricken and the amended counterclaim was stricken. Portions of the answer stricken constituted no defense to the cause of action. The counterclaim was untenable.

The bill of complaint was not without equity. It alleged sufficient facts to show the plaintiff entitled to the relief prayed under the public statutes, the contents of which the court was bound to take judicial cognizance.

The record shows that the City of Arcadia had the power granted by the Legislature to levy taxes for municipal purposes. That the City of Arcadia proceeded to levy taxes for the several years referred to, supra, and that the taxes were not paid for either of such years. There were irregularities in the assessments and it may be conceded that these irregularities if not duly cured by appropriate proceedings, were sufficient to constitute a lack of due process of law. However, all irregularities not amounting to a denial of due process of law were cured by the provisions of Chapter 16309, Special Acts of 1933, and by Chapter 19683, Special Acts of 1939, which were enacted for that purpose.

The proceedings with due notice and opportunity to be heard upon the merits of the tax claims afforded due process of law in enforcing the tax liens pursuant to the statutes, Chapter 6323, Acts of 1911.

The court below and this Court is bound to take judicial cognizance of such Acts of the Legislature. See Charlotte Harbor & Northern Ry. Co. v. Welles, et al., 78 Fla. 227, 82 Sou. 770; Howarth v. City of DeLand, 117 Fla. 692, 158 Sou. 294; A. C. L. Ry. v. Holliday, 73 Fla. 269, 74 Sou. 479; Amos v. Mosely, 74 Fla. 555, 77 Sou. 619; Cranor v. Board of County Commissioners of Volusia County, 54 Fla. 526, 45 Sou. 455. And it is not necessary that those Acts be pleaded, but it is sufficient that the pleading of the party who seeks to rely upon the statute shall set forth the facts which bring the case within it. See Dade County v. Miami, 77 Fla. 786, 82 Sou. 354; A. C. L. Ry. Co. v. State, 73 Fla. 609, 74 Sou. 595. The lack, if any, of due process of law in connection with the assessment of the tax is overcome by the provisions of the Chapter Act, cited infra, requiring the enforcement of the tax to be by proceedings in chancery with notice duly served on the property owner. See Redman v. Kyle, et al., 76 Fla. 79, 80 Sou. 300, and Anderson v. City of Ocala, 67 Fla. 204, 64 Sou. 775, in which we said:

“If the proceedings to enforce the assessment is in the nature of a judicial proceeding in which notice is given to the property owner and a full opportunity is given him to be heard upon the merits, such proceeding constitutes due process of law and no prior notice seems to be necessary.”

The record in this case shows that the defendants were duly served in the tax lien foreclosure suits and that they were given opportunity to be heard on all questions controlling the determination of the issues properly presented. While the record shows that some of the assessments were based upon an inflated valuation there is no showing of discrimination as between those property owners and others like situated, and it also shows that the municipality voluntarily agreed to accept less than the amount of the tax as shown by the assessment roll.

The final decree adjudicated the amount due for taxes and attorney’s fees under the provisions of the statute, Chapter 6323, Acts of 1911, authorizing the tax liens of the City of Arcadia to be enforced by suits in chancery.

On the entire record no reversible error is made to appear and, therefore, the decree is affirmed.

So ordered. .

Brown, C. J., Whitfield, Terrell and Adams, J. J., concur. Thomas, J., agrees to conclusion. Chapman, J., dissents.