State Ex Rel. Clark v. Henderson

• Decision Date: 21 April 1939
• Citation: 137 Fla. 666,188 So. 351
• Parties: STATE ex rel. CLARK v. HENDERSON et al.
• Court: Florida Supreme Court

188 So. 351

137 Fla. 666

STATE ex rel. CLARK v. HENDERSON et al.

Florida Supreme Court

April 21, 1939

Rehearing Denied May 15, 1939.

En Banc.

Original mandamus proceeding by the State of Florida, on the relation of J. L. Clark, against T. N. Henderson, and others, to compel the defendants to levy, assess, and collect ad valorem taxes upon homesteads in Special Tax School District No. 36 Hillsborough County, Florida, for the school year 1938-1939.

Demurrer to alternative writ sustained.

BUFORD J., and TERRELL, C.J., dissenting.

COUNSEL

Wm. E. Thompson, of Tampa, and Keen & Allen, J Velma Keen, Wm. P. Allen, and A. Frank O'Kelley, Jr., all of Tallahassee, for relator.

John W. Cone and Henry C. Tillman, both of Tampa, for respondents.

OPINION

WHITFIELD Justice.

The alternative writ of mandamus issued herein by this court commands the appropriate county officers to levy, assess and collect ad valorem taxes upon homesteads in Special Tax School District No. 36 Hillsborough County, Florida, for the school year 1938-1939, for the exclusive use of public free schools within the district, under section 10, Article XII, of the Florida constitution and the statutes relating thereto, or to show cause for not doing so. The alternative writ alleges:

'That Special Tax School District No. 36 of Hillsborough County, Florida, is a special taxing district created pursuant to the Constitution and Laws of the State of Florida for specific public improvements and for the special benefit of the property in the District, to-wit: the construction of school buildings and the maintenance of such buildings, and to assist in the operation and maintenance of public free schools in such buildings and the taxes levied and assessed for maintenance on the property in the District are special assessments for benefits and should be levied and assessed against all property within the District, including all homestead property as well as all non-homestead property therein.'

A demurrer and motion to quash were filed. Allegations of the writ even on demurrer thereto cannot change the legal effect and operation of the constitution and statutes which control the matter being litigated. The defense in effect is that the school district tax is not a special assessment, but is a tax in aid of a general public school function under the constitution; and that section 7, and amended section 7, Article X of the constitution exempt homesteads from such taxation.

Article XII, section 1, constitution, commands that the Legislature shall provide for a uniform system of public free schools and for the liberal maintenance of such system of free schools. This means that a system of public free schools, as distinguished from the authorized State educational institutions, shall be established upon principles that are of uniform operation throughout the State and that such system shall be liberally maintained. Subsequent provisions of Article XII designate the officers to administer such uniform system of public free schools, and require State, county and school district ad valorem taxes to be levied, assessed and collected, and to be disbursed by stated local public officers solely for the support and maintenance of public free schools, the counties and school districts being the school governing units, to the end that the uniform system of public free schools required by the constitution to be established throughout the State, may be liberally maintained by an efficient and economical administration of the funds derived from State, county and school district ad valorem taxation and from other revenues provided by law consistent with Article XII. See sec. 9, Art. XII. See also State ex rel. Bours v. L'Engle, 40 Fla. 392, 24 So. 539.

The purpose intended to be accomplished in establishing and liberally maintaining a uniform system of public free schools, is to advance and maintain proper standards of enlightened citizenship. Article XII does not provide for any special local improvements to be paid for by district taxation under section 10 and referred to in section 11, other than those that are supplementary to State and County taxes levied for the maintenance of a uniform system of public free schools throughout the State.

Sections 8, 10 and 11 of Article XII are as follows:

'Section 8. Each county shall be required to assess and collect annually for the support of the public free schools therein, a tax of not less than three (3) mills, nor more than ten (10) mills on the dollar on all taxable property in the same. (Amendment of 1904, Joint Resolution 2, Acts 1903, making the maximum seven (7) mills, as amended by Joint Resolution 25, Acts 1917, and adopted at general election, 1918.)'

'Section 10. The Legislature may provide for the division of any county or counties into convenient school districts; and for the election biennially of three school trustees, who shall hold their office for two years, and who shall have the supervision of all the schools within the district; and for the levying and collection of a district school tax, for the exclusive use of public free schools within the district, whenever a majority of the qualified electors thereof that pay a tax on real or personal property shall vote in favor of such levy: Provided, that any tax authorized by this section shall not exceed ten mills on the dollar in any one year on the taxable property of the district. (Amended, Senate Joint Resolution 1, Acts 1921; adopted at general election, 1922.)'

'Section 11. Any incorporated town or city may constitute a School District. The fund raised by Section Ten may be expended in the district where levied for building or repairing school houses, for the purchase of school libraries and text-books, for salaries of teachers, or for other educational purposes, so that the distribution among all the schools of the district be equitable.'

The quoted and other sections of Article XII do not contemplate the imposition of special assessments for benefits, or assessments for special benefits. The district ad valorem tax authorized by section 10 is a tax and not a special assessment. The proceeds of such school district tax are to be used to supplement other school revenues, to make more efficient, in the districts that are formed under section 10, the uniform system of public free schools which are required by the constitution to be liberally maintained in the various counties of the State including the school districts therein.

Section 7 of Article X of the Florida constitution as adopted in 1934, provides that: 'There shall be exempted from all taxation, other than special assessments for benefits, to every head of a family who is a citizen of and resides in the State of Florida' a defined homestead 'up to the valuation of $5,000.00 * * *.' That organic section was amended in 1938 so as to enlarge the classes of persons claiming homesteads who 'shall be entitled to an exemption from all taxation, except for assessments for special benefits.'

Under original section 7 the homestead exemption is 'from all taxation, other than special assessments for benefits.' Under amended section 7 the homestead exemption is 'from all taxation, except for assessments for special benefits.' It is not necessary in this case to determine whether there is any material difference in the ultimate effect of the two last quoted organic provisions. The tax under section 10, Article XII, is imposed in aid of a general public free school system, which the constitution makes uniform throughout the State, and the tax is not imposed for special benefits to accrue to the lands in the particular area, therefore the burden is a tax and not a special assessment.

The constitution does not refer to 'special assessments' except as they are excluded from the exemption of stated homestead property 'from all taxation, other than special assessments for benefits,' and 'from all taxation, except for assessments for special benefits,' section 7, and section 7 as amended, of Article X. Thus the constitution differentiates between taxation and 'special assessments for benefits,' or 'assessments for special benefits,' in providing for exemptions of designated homesteads from taxation.

Designated homesteads 'up to $5,000.00 valuation' are exempt 'from all taxation,' but not from 'special assessments for benefits' or 'assessments for special benefits.' 'Special assessments' may be authorized by statute. Such special assessments are expressly and specifically excluded from the organic exemption of defined homesteads from 'all taxation.' As there are no 'special assessments' authorized by the constitution, those referred to in section 7 of Article X are statutory 'special assessments.' They have been contrasted with a tax by this court, viz.:

'A 'tax' is an enforced burden of contribution imposed by sovereign right for the support of the government, the administration of the law, and to execute the various functions the sovereign is called on to perform. A 'special assessment' is like a tax in that it is an enforced contribution from the property owner, it may possess other points of similarity to a tax, but it is inherently different and governed by entirely different principles.

'It is imposed upon the theory that that portion of the community which is required to bear it receives some special or peculiar benefit in the enhancement of value of the property against which it is imposed as a result of the improvement made with the proceeds of the special assessment. It is limited to the property benefited, is not governed by uniformity, and may be determined legislatively or judicially. Cooley on Taxation (3d Ed.) vol. 2, 1153; Words and Phrases Second Series, vol. 4, p. 625, and ...