Certain Lots Upon Which Taxes Are Delinquent v. Town of Monticello

• Decision Date: 21 February 1947
• Citation: 159 Fla. 134,31 So.2d 905
• Parties: CERTAIN LOTS UPON WHICH TAXES ARE DELINQUENT et al. v. TOWN OF MONTICELLO.
• Court: Florida Supreme Court

31 So.2d 905

159 Fla. 134

CERTAIN LOTS UPON WHICH TAXES ARE DELINQUENT et al. v. TOWN OF MONTICELLO.

Florida Supreme Court

February 21, 1947

On Rehearing July 22, 1947.

Rehearing Denied Sept. 9, 1947.

Appeal from Circuit Court, Jefferson County; W. May Walker, judge.

D. A Finlayson, of Monticello, and Davis, Davis & McClure, of Madison, for D. A. and Mary P. Finlayson, and S.D. Clarke, of Monticello, for other appellants.

Keen &amp O'Kelley, J. Velma Keen, A. Frank O'Kelley, and Chas H. Spitz, all of Tallahassee, for appellee.

BARNS, Justice.

This is a case wherein the appellee City brought a suit to foreclose its tax liens against the appellant's land for the nonpayment of municipal taxes for the year of 1926 and the years of 1928 to 1939 inclusive, as authorized by Chapter 173, F.S. 1941, F.S.A.

The Chancellor entered a final decree of foreclosure against the appellant and his principal assignment of error is:

'The Court erred in making and entering the final decree, * * * in that

(a) No levy was made in pursuance of law;

'(b) That the evidence disclosed that no certificate of a majority of the town council was attached to the several tax rolls upon which the Town of Monticello relies for recovery that the Town Council had examined such tax rolls and found them to be correct;

'(c) That no warrant of the Tax Assessor to the Tax Collector in the form set out in the Charter of the Town of Monticello was attached to the several tax rolls upon which the said Town of Monticello relies for a recovery.'

Treating these items of complaint in order, it appears that:

(a) The levies were by resolution and not by ordinance as prescribed by Section 18, Chapter 9026, Sp.Acts 1921;

(b) There was not attached to the assessment roll the certificate of the Town Council, that it had examined the assessment rolls and that they were found to be correct as prescribed by Section 11, Chapter 9026, Sp.Acts 1921; and

(c) The warrant of the Tax Assessor directed to the Tax Collector was not attached and delivered to him, as prescribed by Section 30, Chapter 9026, Sp.Acts 1921.

In 1929 by Section One of Chapter 14572 the administrative procedure for the assessment and collection of State and County taxes was made directory whereas prior thereto much of it was mandatory. This Section is now a part of F.S. 1941, Section 192.21, F.S.A.

By the language of F.S. 1941, 192.21, F.S.A., it is not applicable to municipalities.

'Statute relating to delinquent state and county taxes held not to apply to municipal taxes and certificates (Acts 1929 [Ex.Sess.] c. 14572 [F.S.A. § 1921.21]).' State ex rel. Dofnos Corporation v. Lehman et al., 100 Fla. 1401, 131 So. 333.

However, where the municipality's charter made the state law applicable, F.S. 1941, § 1921.21, F.S.A., will be applied.

'Holder of City of Coral Gables tax sale certificate held entitled to maintain suit under general statute authorizing foreclosure of tax sale certificates (Sp.Acts 1929, c. 13972, Sec. 44; Acts 1929 [Ex.Sess.] c. 14572 [F.S.A. § 192.21]).' Southwest Enterprises Inc. v. Marion Frasse et vir., 113 Fla. 770, 152 So. 175.

It appears that the City's Charter by Section 40 of Chapter 9026, Sp.Acts 1921; providing: 'All the provisions for the State Law for the enforcement and collection of State and County taxes shall avail the said municipal government hereby created as fully and completely as is embodied therein, insofar as the same does not conflict with the provisions of this charter,' when considered together with F.S. 1941, § 192.21, F.S.A., has made directory the provisions of the charter for the assessment and collection of Monticello taxes since 1929 whereas before they may have been construed as mandatory.

Section 18 of the City's Charter (Chapter 9026) provided that the levy of taxes should be by ordinance as distinguished from resolution and neither Chapter 14572 nor F.S. 1941, § 192.21, F.S.A., attempted to make procedural matters relating to the levy of taxes directory.

It appears since 1929 by reason of said Section 40 of Chapter 9026, Sp.Acts 1921, and Section 1 of Chapter 14572 as carried forward in F.S. 1941, § 192.21, F.S.A., that the administrative procedure relating to the assessment and collection of taxes of Monticello has become directory instead of mandatory.

It further appears that if Section 18 of Chapter 9026 relating to the levy of taxes is mandatory the attempted levy by resolution instead of ordinance has been cured by the Florida Statutes 1941 containing the following:

'All cities and towns which now are and for ten years last past have been exercising municipal governments are declared legally incorporated.' F.S. 1941, § 165.23, F.S.A.

'All acts and doings of cities and towns included in § 165.23, and of the government and officers of the same, done under any law of the State of Florida, are declared valid; and said municipal corporations and governments, and all the officers of the same, shall have the powers and privileges granted by law, approved February 4, A. D. 1869, and all subsequent laws relating to municipal corporations and the governments of the same.' F.S. 1941, § 165.24, F.S.A.

It also appears that these two last quoted Sections cured any irregularities relating to the assessment and collection of such taxes.

Affirmed.

THOMAS, C. J., and CHAPMAN and ADAMS, JJ., concur.

TERRELL and BUFORD, JJ., dissent.

SEBRING, J., not participating.

BUFORD, Justice (dissenting).

I think that the levy could not have been legally authorized except by ordinance. I do not think Sec. 165.24, Fla.Statutes 1941 (same F.S.A.), was sufficient to ratify the assessment theretofore made in such manner as not to comply with applicable law and not affording due process of law. This section is too indefinite to effectuate that purpose. See Hendricks v. Town of Green Cove Springs, 103 Fla. 81, 87, 137 So. 229.

TERRELL, J., concurs.

On Rehearing.

BUFORD, Justice.

The pertinent facts involved in this case are stated in the original opinion filed herein on February 21, 1947.

Chapter 9026 Special Acts of the Legislature of 1921 is the Municipal Charter of the Town of Monticello.

Section 18 of that Act confers the power of taxation on the municipality in the following language:

'That the Town Council shall have the power by ordinance to levy and collect taxes upon all property, real, personal and mixed, within the corporate limits of the town, for municipal purposes;' (Emphasis supplied.)

Thus it is seen that in the very beginning the power to tax was specifically limited so that it could be exercised only by ordinance.

The taxes involved in this suit were attempted to be levied by resolution and not by ordinance; therefore, the charter power 'by ordinance to levy' was not exercised in this regard.

If the charter had conferred the power to levy taxes without limiting the power to do so 'by ordinance,' a different question might have been presented.

Section 3 of Article IX of our Constitution provides:

'No tax shall be levied except in pursuance of law.'

This provision applies to municipalities. Graham v. West Tampa, 71 Fla. 605, 71 So. 926; Lainhart v. Catts, 73 Fla. 735, 750, 75 So. 47.

The material difference between ordinances of the Town of Monticello and Resolutions of the Town Council is that there is no provision requiring the publication of a Resolution or requiring the participation by the Mayor while Section 11 of the Charter Act provides as to ordinances:

Sec. 11. 'That every ordinance passed by the Council, before becoming a law, shall be presented to the Mayor under the certificate and seal of the Clerk. If the Mayor approve the same, he shall sign it and return it to the Clerk, but if not, he shall return it to the Clerk with his objections in writing at or before the next regular meeting of the Council for reconsideration, and if the Council shall pass the ordinance by a two-thirds vote of all members present, it shall go into effect. If the mayor shall fail to return any ordinance or shall return the same unsigned without objections in writing at or before the next regular meeting of the Council after its passage, he shall be deemed to have approved the same and it shall become a law without his signature. All ordinances receiving the approval of the Mayor, or becoming a law without his approval, shall go into effect within five days after its first publication.'

Section 41 of the Charter Act, supra, provides:

Sec. 41. 'All the powers, privileges and provisions of the general law for the incorporation of cities and towns, when not in conflict with the terms of this Act, shall be and the same are hereby made a part of this Charter.'

The charter act makes no specific provision for the publication of ordinances. Therefore, under Sec. 41, supra, we must look to the general law for that provision. We find that to be Sec. 165.20, Fla. Statutes 1941, same F.S.A., which reads as follows:

'The city or town council shall keep or cause to be kept a regular record of their proceedings and ordinances, and they shall promulgate, without unnecessary delay, all laws and ordinances which they may enact by posting at the door of the city or town hall, and at the public market place, or by publishing the same in any newspaper in said city or town, in either case for a period of not less than four weeks.'

This makes it clearly apparent that a resolution by the City Council will not suffice where the operation of an ordinance is required.

Municipal corporations possess no inherent power of taxation. The exercise of such power must find its warrant in the statutes or the Constitution. See 38 Am. Juris. 68, Sec. 381, also Clark v. Des Moines. 222 Iowa 317, 267 N.W. 97 citing R. C. L.;...