Bush v. State Ex Rel. Dade County

• Decision Date: 17 October 1939
• Citation: 191 So. 515,140 Fla. 277
• Court: Florida Supreme Court
• Parties: BUSH et al. v. STATE ex rel. DADE COUNTY et al.

191 So. 515

140 Fla. 277

BUSH et al. v. STATE ex rel. DADE COUNTY et al.

Florida Supreme Court, Division A.

October 17, 1939

Rehearing Denied Dec. 1, 1939.

Proceeding by the State of Florida, on the relation of Dade County against Irving T. Bush and others to enforce a lien for taxes claimed against a certain vessel which belonged to the defendants Irving T. Bush and Marian S. Bush, wherein Hayes Wood, as Tax Collector for Dade County and the State of Florida, intervened, and wherein Marian S. Bush filed a cross-bill, wherein J. N. Lummus, Jr., as Tax Assessor for Dade County, was made a defendant. From an adverse decree defendants Irving T. Bush and Marian S. Bush appeal.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

S. J. Barco and Roy S. Wood, both of Miami, R. E. Bradley, of Lake Wales, and Lowell M. Birrell, of New York City, for appellants.

James J. Marshall, Melbourne L. Martin, and Stapp, Gourley, Ward & Ward, all of Miami, for appellees.

OPINION

BUFORD Justice.

The appeal brings for review final decree, the pertinent part of which is as follows:

'It is thereupon ordered, adjudged and decreed as follows:

'1. That due and legal service has been had upon the defendants and cross-defendants in this cause, that answers have been filed by them and they have been represented by counsel herein, that the court has jurisdiction of the parties to said cause and the subject matter thereof.

'2. That the exceptions of the defendants and cross-plaintiffs Irving T. Bush and Marian S. Bush, his wife, to the report of the Special Master, be and the same are each separately and severally overruled and denied.

'3. The court finds from an examination of the files and records herein, the master's report and the admitted facts that the Yacht Coronet is a vessel used solely for the pleasure of its owners and that it came to Miami harbor at Miami, Dade County, Florida, in the fall of the year 1931 and that it has remained in Dade County, Florida, either in the Miami harbor or in the Miami River, ever since for a period of practically seven years and that said boat has been continuously within the limits of Dade County, State of Florida, all of that time; that while the owners of said vessel are shown to be residents of the State of New York yet said Yacht has been knowingly permitted to remain in Dade County, Florida, continuously for said time and has acquired an actual physical situs in Dade County, Florida, for the purpose of taxation; that said property has been commingled in the mass of other personal property in this State and is subject to the same taxation and liability, therefore, as any other personal property movable by land or water, and the Court finds no provisions in the Federal Statutes exempting or prohibiting the taxation of this vessel as personal property for ad valorem taxation; that said vessel, from the facts admitted, was left here for an indefinite stay rather than simply a short temporary stay and the court finds from these facts that the situs of said boat or vessel from the time it was left here up to this time was based on an indefinite rather than a temporary stay and that under these circumstances, regardless of the fact that the owners were non-residents or the home port of the vessel may have been in another place the vessel was subject to taxation by the State of Florida. The court finds no element of interstate or foreign commerce involved in this cause.

'4. The court, therefore, finds that the State of Florida and County of Dade was within its rights and powers in assessing said boat for taxation for the period of time mentioned in the master's report and that the assessments for the year 1932 up to and including 1937 are valid, legal assessments and that the State of Florida has a lien upon said vessel to-wit: the yacht Coronet, that is prior in dignity to all other liens.

'5. The court finds that the State of Florida ex rel Dade County is entitled to recover the taxes based upon the assessments as follows:

For the year 1932 ..

$1,325.01

For the year 1933 ...

1,515.63

For the year 1934 ...

1,503.13

---------

Total ...........

4,343.77

and that the intervenor and cross-defendant, Hayes Wood, as Tax Collector for the County of Dade and the State of Florida is entitled to recover under the same lien for said assessments as follows:

For the year 1935 ..

$1,594.75

For the year 1936 ...

1,494.79

For the year 1937 ...

1,231.50

making a total due to the said Hayes Wood, as Tax Collector aforesaid, of $4,321.04.

'6. The total amount of said lien as stated in the foregoing paragraph owed to the State of Florida and Dade County is in the amount of $8,664.81, which constitutes one lien against the yacht Coronet, which lien the court finds should be enforced in this cause, together with all costs fixed by the court herein, together with Clerk's costs and additional master's fees for making the sale in the event the same is necessary as hereinafter provided for.

'7. The court finds that a master's fee in the sum of $500.00 is a reasonable master's fee, and that a stenographic fee for transcribing the testimony in the sum of $30.00 is a reasonable amount for such stenographic fee, and the sum of $530.00 is hereupon fixed by this court as costs herein and secured by the same lien against said yacht Coronet. From the report of said master the court finds that J. N. Lummus, Jr. as Tax Assessor of Dade County, Florida, has heretofore advanced the sum of $62.50 that Hayes Wood, as Tax Collector of Dade County, Florida, has heretofore advanced the sum of $62.50, and that the State of Florida ex rel Dade County has heretofore advanced the sum of $30.00, and that S. J. Barco, on behalf of the defendants Marian S. Bush and her husband, Irving T. Bush, has heretofore advanced the sum of $25.00 leaving a balance due on said master's fee and stenographic fee in the amount of $350.00; that this court has heretofore by order dated August 27th, 1938, fixed the amount of these fees and costs and has directed that the balance in the sum of $350.00 remaining due and unpaid belongs to the master, David B Newsom, the stenographic fee having been paid, and the defendants heretofore directed in said order that one-half of the balance shall be advanced by J. N. Lummus Jr., as Tax Assessor of Dade County, Florida, and one-half of the balance advanced by Hayes Wood, as Tax Collector of Dade County, Florida, without prejudice or without determination of the liability ultimately for said costs to be fixed in the said final decree. The court hereby taxes said master's fee and costs in the amount of $530.00 together with Clerk's costs and the cost of the special master's sale in the event the same is held as hereinafter provided, against the defendants Irving T. Bush and Marian S. Bush, his wife, and directs that said amount shall be incorporated into and become part of the amount secured by said lien against the yacht Coronet; that upon the payment by the defendants of these amounts, either voluntarily or through the proceeds of the sale of said vessel, the parties advancing the respective amounts set forth, excepting the said S. J. Barco, Attorney for the said defendants, shall be reimbursed for the amounts so advanced.

'8. That the court finds these amounts to be due and payable by the defendants Irving T. Bush and Marian S. Bush, his wife and unless said amounts be paid forthwith and immediately to the State of Florida ex rel Dade County and Hayes Wood, as Tax Collector for Dade County, Florida, or their attorneys of record, together with all the costs hereinbefore specified the said hereinabove described personal property, to-wit: the yacht Coronet, together with all of its fixtures, furnishings, engines, tackle, equipment and appurtenances belonging thereto, shall be sold by David B. Newsom, who is hereby designated and appointed special master of this court to execute and carry into effect this decree; that the said special master shall sell the said property under and by virtue of this decree at public outcry to the highest and best bidder for cash at the south front door of the County Court House in the City of Miami, Dade County, Florida, on a legal sales day of this Court and during the legal hours of sale but not at an earlier date than the rule day in October, A. D. 1938, to-wit: October 3rd, 1938. The said special master shall first give notice of the sale by publishing said notice in the Miami Review and Daily Record, a newspaper of general circulation published in Dade County, Florida, in the following manner: once a week for four consecutive weeks beginning not less than twenty-eight days prior to the date of the sale. Any sale of the property under lien, to-wit: the yacht Coronet, under this decree shall be made by the said special master subject to all unpaid taxes against the said property excepting those herein adjudicated, and no unpaid taxes against said property shall be paid out of the proceeds of any sale thereof. Out of the proceeds arising out of the sale of said property herein ordered to be sold to satisfy said decree the said Special Master shall first pay all costs and expenses of this proceeding, including the fees hereinbefore allowed and fixed as master's fees and stenographic costs, and he will then pay to the said State of Florida ex rel Dade County and to the said Hayes Wood, as Tax Collector of Dade County, Florida, the amount of the respective taxes adjudicated herein to be due and payable to the said respective parties. In the event the proceeds of the sale are not sufficient to pay both in full then the payments shall be made pro rata, and in the event said property shall sell for more than...