The Sivort Co. v. State

186 So. 671, 136 Fla. 179, 1939 Fla. LEXIS 1535

• Court: Supreme Court of Florida
• Decided: January 27, 1939
• Status: Published

Opinions

Buford, J.

— Appeal brings for review order denying motion to dismiss bill of complaint, the purpose of which was to foreclose tax certificates. The bill of complaint was attacked on the theory that its efficiency depends' upon the provisions of Chapter 17,460, Acts of 1935, being entitled :

“An Act Relating to and Concerning Taxation and Providing for the Foreclosure in Equity of Tax Sale Certificates and Deeds and Procedure in Such Cases in Which Said Tax Sale Certificates and Deeds Have Been Issued to the Treasurer of the State of Florida and Providing for Procedure in Such Cases in Counties Having a Population of Not Less Than 180,000, Nor More Than 200,000, According to Any Federal or State Census Heretofore or Hereafter Taken.”

It is the contention of the appellant that the complainant must maintain the suit, if at all, under power and authority created and vested by the legislative Act, supra, and that the Act is void because the provisions of Sec. 21, Article III, of the Constitution were not complied with. This contention is based on the hypothesis that the legislation is a local and special Act and was not advertised as required by the Constitution, supra, and did not provide for a referendum.

If it were necessary to have legislative authority to provide the right to foreclose a tax certificate it might be necessary for us to discuss this contention, but such is not the law. No statutory authority is required to authorize the State to foreclose tax liens evidenced by tax sale certificates lawfully issued to the State.

In Brickell v. Palbricke, 123 Fla. 508, 167 Sou. 44, we said:

“That the lien evidenced by valid tax sale certificates is of such character that it may be enforced by foreclosure without the aid of statutory provisions particularly au thorizing and fixing the procedure for such foreclosure is established in this jurisdiction by the opinion and judgment in the case of First Trust and Savings Bank v. West Lake Inv. Co., 105 Fla. 590, 141 Sou. 894. This must be true because it is well settled that a valid tax sale certificate constitutes a lien of highest character.

“In the case of First Trust & Savings Bank v. West Lake Inv. Co., supra, it was held: ‘When the tax sale certificate is held by an individual that individual succeeds to all the rights of the sovereign power making the levy and assessment to enforce the payment of the lien which is evidence by the certificate.’

“See also San Sebastian Development Corp. v. Couch, 103 Fla. 692, 138 Sou. 61, and 37 Cyc. 1242; Black on Tax Titles, 2nd ed. p. 240, Sec. 193.

“The foreclosure of liens is a matter of equitable cognizance and is, therefore, within the jurisdiction of our Circuit Courts under Sec. 11, Art. V of our Constitution.”

The rights of parties litigant are dependent on the law as it is and not upon what someone may have conceived the law to be.

So, regardless of the validity of the provisions of Chapter 17460, supra, courts of equity have jurisdiction to foreclose liens and such jurisdiction being lodged in the Circuit Courts as courts of equity, that jurisdiction may not be abridged or taken away by legislative Act.

However, the statutes are not silent on the subject. Sec. 3228 R. G. S., 5034 C. G. L., provides:

“All liens of any kind, whether created by statute or the common law, and whether heretofore regarded as merely possessory or not, may be enforced by proceedings in chancery.”

It, therefore, follows that there is no authority for the recovery of costs or attorneys fees in such cases as this the order appealed from must be affirmed.

So ordered.

Affirmed.

Terrel, C. J., and Thomas, J., concur. Chapman, J., concurs in the opinion and judgment. Whitfield, P. J., and Brown, J., not participating, as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.