City of Coral Gables v. Certain Lands Upon Which Taxes Are Delinquent

• Decision Date: 10 May 1933
• Parties: CITY OF CORAL GABLES v. CERTAIN LANDS UPON WHICH TAXES ARE DELINQUENT et al.
• Court: Florida Supreme Court

149 So. 36

110 Fla. 189

CITY OF CORAL GABLES v. CERTAIN LANDS UPON WHICH TAXES ARE DELINQUENT et al.

Florida Supreme Court

May 10, 1933

Rehearing Denied July 8, 1933.

En Banc.

Suit by the City of Coral Gables against Certain Lands Upon Which Taxes Are Delinquent, Coral Gabls, Incorporated, and others. From the decree, complainant appeals.

Affirmed in part, and in part reversed and remanded.

ELLIS and BROWN, JJ., dissenting. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Morton B. Adams, M. McDonald, and Boone T. Coulter all of Miami, and F. P. Fleming, E. J. L'Engle, and J. W Shands, all of Jacksonville, for appellant.

Frederick W. Schmitz, of Coral Gables, Clifton D. Benson, Benjamin E Carey, and Charles R. Pierce, all of Miami, Edward B. Hope of Coral Gables, Evans & Mershon, M. L. Mershon, and John J. Lindsey, all of Miami, and L. O. Casey, of Hollywood, for appellees.

OPINION

BUFORD Justice.

The city of Coral Gables sought to enforce the payment of delinquent taxes by the prosecution of a suit in chancery court under the provisions of chapter 15038, Acts of the Legislature of Florida of 1931.

It is not necessary for us to quote the provisions of the act in this opinion, as it is available in the published statutes of this state to all who are sufficiently interested to turn thereto and read the same.

It is sufficient to say that the act provides for proceedings in rem against the property against which a tax assessment has been made, whether such assessment originated as an ad valorem assessment or as a special assessment where such assessment, or assessments, have become a lien, or liens, upon the property.

The statute further provides that there may be included in one suit all or any part of the lands upon which tax certificates have been outstanding or taxes have remained delinquent or any special assessment or installment thereon shall have been in default for the respective periods named in the act; and that there may be included therein all claims and demands of the municipality against said lands or any part thereof for taxes, tax certificates, and special assessment, or special assessments, or installments thereof which may be due and payable to the municipality at the time of the institution of the suit.

The act provides the manner in which the suit shall be brought and how jurisdiction may be obtained. That part of the act pertaining to the acquisition of jurisdiction is as follows:

'Jurisdiction of any of said lands and of all parties interested therein or having any lien thereon shall be obtained by publication of a notice to be issued as of course by the Clerk of the Circuit Court in which such bill is filed on the request of complainant, once each week for not less than four consecutive weeks, directed to all persons and corporations interested in or having any lien or claim upon any of the lands described in said notice and said bill. Such notice shall describe the lands involved and the respective principal amounts sought to be recovered in such suit for taxes, tax certificates and/or special assessments on such respective parcels of land, and requiring all such parties to appear and defend said suit on or before a rule day specified in said notice, which shall be not less than four weeks after the date of the first publication of such notice. Said notice may be in substantially the following form, with blanks appropriately filled in: [Then follows the form, of notice required.]' Section 4.

There was a special appearance and motion to quash the process and service of process, which motion challenged the jurisdiction of the court over persons other than those appearing, and, second, challenged the constitutionality of the mode of procedure prescribed by the statute under which the suit was brought. The circuit court correctly held that, by filing motion of this character the defendants filing same entered a general appearance. Another special appearance and motion to quash the process and the service of process challenged the jurisdiction of the court over the person of the movant and over the property of the movant involved in the suit. The court held that this motion constituted a general appearance. The motion contested not only the jurisdiction of the court over the person of the defendant but also the right of the court to take jurisdiction over other defendants in the suit and in so far as the jurisdiction of the court over other defendants is concerned, the grounds thereof involve the merits of the case and constitute a general appearance.

Another ground of the motion filed by Coral Gables, Inc., was 'because the mode of proceeding, the mode of service and the mode of constructive service are not due process of law but are violative of the provisions of the Fourteenth Amendment of the Constitution of the United States.' This ground challenges the constitutionality of the statute prescribing the method of serving process and also the constitutionality of the mode of proceeding therein provided, which included all that the statute required to be done to authorize the foreclosure of such tax liens, and included, not only an attack upon the service of process, but likewise an attack on all other proceedings taken in the case, and the motion was therefore one which presented other issues than the jurisdiction of the court over the defendant.

The holding of the circuit court that the filing of those motions constituted general appearances is supported by the opinions and judgments in the cases or Ortell v. Ortell, 91 Fla. 50, 107 So. 442; Casper et al. v. Bonbright et al., 94 Fla. 1237, 115 So. 540; First National Bank v. Board of Public Instruction, 93 Fla. 182, 111 So. 521; State ex rel. Pepper v. Atkinson, 98 Fla. 996, 124 So. 458, and cases there cited.

This case presents no question concerning the validity of the assessment and levy or the creation of the lien by the proper procedure on the part of the taxing officials. We are asked to consider and deal only with the questions which are presented by the challenge of the right of the city to pursue the procedure authorized under chapter 15038, supra. It is contended that the procedure prescribed by this statute results in owners and claimants of other interests in property being deprived of their property without due process of law, and the appeal is from a judgment of the circuit court which in effect holds the act unconstitutional on that ground.

In Fiehe v. R. E. Householder Co., 98 Fla. 627, 125 So. 2, we adopted the general definition found in 6 R. C. L. 446, of the essential elements of due process of law, and in Tibbetts v. Olson, 91 Fla. 824, 108 So. 679, 688, Mr. Justice Whitfield, speaking for the court, said:

'The Constitution is designed to prescribe and limit governmental powers and to secure individual rights against unlawful invasion by public officers or by private parties. The courts are required to adjudicated rights 'by due course of law,' the essence of which is that, by appropriate procedure, duly proscribed, fair notice and a reasonable opportunity to be heard shall be given to interested parties before judgment or decree is rendered.'

Due process of law in connection with the enforcement of liens for taxes is not to be confused with, and measured by, the same standards as must be the requirements of due process of law when rights are sought to be enforced between individuals.

Mr. Cooley in his excellent work on Taxation, vol. 3, § 1326 (4th Ed.) says:

'Very summary remedies have been allowed, in every age and country, for the collection by the government of its revenues. They have been considered a matter of state necessity. Without them it might be possible for a party which had been defeated in its efforts to obtain possession of the government in the constitutional way, to cripple the government for the time being, and possibly to break it up altogether. If the state might be deprived of the resources for continuing its existence and performing its regular functions until a revenue could be collected by the processes provided for the enforcement of debts owing to individuals, it would be continually at the mercy of factions and discontented parties. Obviously, this could not be tolerated. The protective principles of the common law are not supposed to be violated by a resort to summary proceedings in these cases. Summary processes are not necessarily unjust, though they would be so if they deprived the party of a hearing or if they precluded the opportunity for a patient and deliberate examination of the questions upon which his rights depend, before such rights could be finally concluded and cut off. But it is not the design of legitimate tax legislation to do this in any case. It may depart widely in its methods from those reported to for the enforcement of rights at the common law, but the fundamental rules of justice will be observed, and, in theory at least, revenue laws will careful be for the protection of individual rights.'

In the case of Leigh v. Green, 193 U.S. 79, 24 S.Ct. 390, 48 L.Ed. 623, the Supreme Court of the United States had under review the judgment of the Supreme Court of the state of Nebraska obtained in a suit under the statutes of Nebraska for the enforcement of liens for taxes by sale of the property. That statute provided for service of process in section 4 thereof (Comp. St. Neb. 1899, § 4481), as follows:

'Service of process in causes instituted under this chapter shall be the same as provided by law in similar causes in the district courts, and where the owner of the land is not known, the action may be brought against the land itself, but in such case the service must be as in the case of non-resident; if...