City of Sarasota v. Skillin

• Decision Date: 19 July 1937
• Citation: 178 So. 837,130 Fla. 724
• Court: Florida Supreme Court
• Parties: CITY OF SARASOTA v. SKILLIN et al.

178 So. 837

130 Fla. 724

CITY OF SARASOTA v. SKILLIN et al.

Florida Supreme Court, Division A.

July 19, 1937

On Rehearing December 14, 1937.

Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.

Suit by E. E. Skillin and others against the City of Sarasota. To review an adverse decree, defendant brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL Harrison E. Barringer, of Sarasota, and J Velma Keen, of Tallahassee, for plaintiff in error.

Frank Redd, of Sarasota, for defendants in error.

OPINION

TERRELL Justice.

In 1927, the Legislature by chapter 13403, Sp.Acts, incorporated 'all of that part of Little Sarasota Key lying north of the Township line, separating, dividing, and drawn between Township 36 and Township 37, and lying and being situate in Section 36, Township 35, South Range 17 East,' into the City of Sarasota, Fla.

In February, 1934, appellees, as complainants, filed their bill of complaint in the circuit court praying that the city of Sarasota be restrained from assessing, collecting, or advertising for sale and selling for nonpayment of municipal taxes any of their lands lying and situated within the foregoing described addition thereto. A motion to dismiss the bill was denied, answer was filed, and on final hearing a decree was entered in compliance with the prayer of the bill. The instant appeal is from the final decree.

The first question with which we are concerned is whether or not a property owner in a municipality can challenge the validity of the act creating or enlarging the latter in a suit to enjoin the collection of municipal taxes.

It is quite true that this court has approved a proceeding by quo warranto as the general method of seeking relief where a municipality undertakes to exercise control of territory over which it has no jurisdiction. State ex rel. Attorney General v. City of Sarasota, 92 Fla. 563, 109 So. 473. But in State ex rel. Attorney General v. City of Avon Park, 108 Fla. 641, 149 So. 409 we held that where unbenefited rural lands were included in a municipality and the owner has no adequate legal remedy and is not estopped, equity may enjoin the collection of municipal taxes thereon. The latter case would seem to be a complete answer to this question, as, under the facts presented, injunction affords a more expeditious remedy.

It is next contended that appellees have estopped themselves from seeking relief herein because of having voted in municipal elections, paid municipal taxes, and by having plotted their property, and dedicating streets thereon to the municipality.

Complainants below base their prayer for relief on the ground that the lands in question were remote from the City of Sarasota, were separated from it by Little Sarasota Bay, were wild and unoccupied, were sparsely settled, and had at no time received any municipal benefits nor were any in prospect. On the merits, the chancellor found for the complainants and his judgment finds ample support in the record. In State ex rel. Landis, Attorney General, v. Town of Boynton Beach, 177 So. 327, decided this date, we have discussed the question and announced the law applicable in cases where territory has been improperly included in a municipality. What we there said is equally applicable in this case.

The judgment of the chancellor is accordingly affirmed on authority of State ex rel. Landis, Attorney General, et al. v. Town of Boynton Beach (Fla.) 177 So. 327, decided this date, and State ex rel. Attorney General et al. City of Avon Park, supra.

Affirmed.

ELLIS, C.J., and BUFORD, J., concur.

CHAPMAN, J., concurs in the opinion and judgment.

BROWN J., dissents.

DISSENTING

BROWN, Justice (dissenting).

The holding in this case that the appellees as complainants in the court below could go into equity and enjoin the collection of municipal taxes upon their lands on the ground that said lands were rural in character, received no municipal benefits, and that the act embracing said lands within the municipality was therefore without constitutional force and effect as to said lands, and that therefore the city had no right to levy taxes thereon, is based upon the case of State ex rel. Attorney General v. City of Avon Park, 108 Fla. 641, 149 So. 409, 418.

I do not think that this question was really settled by the case cited. That case was a quo warranto case, in which the Attorney General joined by a number of corelators sought to have an act of the Legislature enlarging the city limits of Avon Park declared unconstitutional and void in so far as it attempted to embrace within the city the lands of the corelators. It is true that in the opinion of Mr. Justice Whitfield in that case it was held that the landowners, corelators, had a remedy in equity to enjoin municipal taxation of their unbenefited rural lands, and that judgment of ouster in the quo warranto proceedings should be denied as to corelators lands, which were scattered through the added territory, there being no prayer to oust the municipality from all lands so included by the act. Mr. Justice Terrell, and Circuit Judges Campbell and Johnson, sitting in the places of Mr. Chief Justice Davis and Mr. Justice Ellis, concurred in said opinion. Mr. Justice Buford concurred specially, and the writer dissented to that part of the opinion above referred to. The order which was made as a result of that opinion was as follows:

'As there is no prayer to oust the city from all the territory covered by the Special Acts of 1925 and 1927, and as the lands of the several corelators are so scattered and otherwise conditioned that an ouster as to such lands alone is not on this record a proper function of a quo warranto judgment, the motions to strike the amended answer are denied, and the demurrer to the amended answer is overruled with leave to the relators to proceed as they may be advised.'

After this order was made, the information was amended by the Attorney General so as to test the right of the municipality to exercise municipal functions over all the territory which had been added to the city by the legislative acts in question. The cause was reargued after the amendment, Circuit Judge Johnson continued to sit in lieu of Mr. Chief Justice Davis, who was disqualified. In the per curiam opinion rendered on the reargument of the case, it was stated:

'After having fully considered the briefs presented and the argument of counsel, Mr. Presiding Justice Whitfield, Mr. Justice Terrell, and Circuit Judge Johnson are of the opinion that the demurrer to the amended answer should be overruled. While Mr. Justice Ellis, Mr. Justice Brown, and Mr. Justice Buford are of the opinion that the demurrer to the amended answer should be sustained. This is an original proceeding. It requires a majority of the court sitting to determine affirmatively that a demurrer to a pleading be sustained. Therefore, the court being evenly divided, the demurrer here to the amended answer must be overruled.

'The answer bing held good against attack by demurrer presents issues of fact which in quo warranto proceedings the parties have the right to have determined by jury trial. This court is without facilities for impaneling juries and conducting jury trials and for that reason this cause will now be dismissed without prejudice to the parties to institute like proceedings in the circuit court for the purpose of determining and having adjudicated the questions involved.

'It is so ordered.'

Thus, the court being equally divided, on the final decision of the case, as regarded the question of the sufficiency of the city's answer, when attacked on demurrer, I do not think that the question here involved, as to the right of persons owning land within the limits of a city as established by the Legislature to enjoin the city from imposing or collecting taxes on said land, for the reasons here involved, or that were involved in the cited case, was conclusively settled by the decision in that case. I consider the question as still an open one in this jurisdiction.

The permanent injunction granted against the city in the court below creates an anomalous situation. The city is enjoined from collecting taxes on lands within its limits, yet the city is not ousted from jurisdiction over such lands. The lands are left within the city's boundaries, but in effect are declared to be exempt from taxation. Thus, it appears that the injunction commands the city to do that which it has no right to do under the constitution, as long as these lands remain within its limits.

Section 1 of article 9 of the Constitution provides that the Legislature shall provide for a uniform and equal rate of taxation (except as to intangible property) and shall prescribe such regulations as shall secure a just valuation of all property, both real...