City of Sebring v. Wolf

• Decision Date: 17 May 1932
• Citation: 141 So. 736,105 Fla. 516
• Parties: CITY OF SEBRING et al. v. WOLF et al.
• Court: Florida Supreme Court

141 So. 736

105 Fla. 516

CITY OF SEBRING et al. v. WOLF et al.

Florida Supreme Court, Division B.

May 17, 1932

Suit by the City of Sebring, a municipal corporation, and others against Ed Wolf and others. From a decree of dismissal complainants appeal.

Affirmed.

ELLIS J., dissenting. Appeal from Circuit Court Highlands County; W. J. Barker, judge.

COUNSEL

M. R. McDonald, of Sebring, for appellants.

Leitner & Leitner, of Arcadia, for appellees.

OPINION

DAVIS J.

In this case the bill of complaint shows that the city of Sebring, Fla., in 1931 acquired fee-simple title to a certain lot of land described as follows: 'Lot Number Ten (10) in Block Sixty-five (65), Second Addition to the Town of Sebring.' The object of the suit was to have set aside and canceled as clouds on complainant's title certain state and county tax certificates which had been issued on said land for taxes for the years 1925, 1927, 1928, and 1929. The ground for the relief prayed is that the assessments and levies of the state and county taxes involved in the certificates were not made as required by the Constitution and laws of the state of Florida, in that the county commissioners of Highlands county, and certain of the taxing officers, failed to exactly pursue the statutory requirements relating to the assessment and levy of the taxes prior to the tax sales and issuance of the certificates in question. The chancellor sustained a motion to dismiss the bill, and the complainants have appealed.

According to the allegations of the bill of complaint, the city of Sebring is a municipal corporation under the laws of Florida. The bill shows that its title to the land in question was acquired in 1931, while the tax certificates sought to be canceled and set aside were issued and outstanding. It also appears from the bill that at the time the complainant acquired title to the land from which the tax certificates are sought to be removed as a could there was in force and effect section 16 of chapter 14572, Acts of 1929 Ex. Sess. Laws of Florida, which reads as follows:

'All tax sale certificates and deeds now held and owned by the State of Florida, or any person, firm or corporation which are invalid on account of any matter or thing not affecting the authority of the State or any county thereof to levy and collect the taxes evidenced by such certificates are hereby validated and made legal to the extent of any lien evidenced thereby, in so far as is competent for the Legislature of the State of Florida so to do; provided, however, that this section shall not apply to certificates and/or deeds involved in litigation now pending.'

It is therefore clear from the allegations of the bill of complaint that the complainant acquired title to the land in question with knowledge that tax certificates for unpaid state and county taxes were outstanding and unpaid at the time the title was acquired and that the Legislature had by statute undertaken to validate and render enforceable such tax certificates.

Whatever may have been the right of the original owner of the land to contest the constitutional validity or application of chapter 14572, Acts of 1929, to the situation here involved, it is clear that the city of Sebring, a municipality existing under the authority of the Legislature to create and maintain it, has no right to do so, especially in view of the fact that all of the rights acquired by it to the lands in question were acquired in the face of legislation undertaking to validate the tax certificates now sought by it to be canceled and set aside.

It is well settled in this state that a statute found on the statute books must be presumed to be valid and given effect until it is judicially declared unconstitutional. State ex rel. Howarth v. Jordan, Clerk (Fla.) 140 So. 908, decided at the present term. It is also well settled that even though a statute be unconstitutional, those only who have the right to raise the question of its unconstitutionality may invoke aid of the courts to have it judicially set aside. County Commissioners of Franklin County v. State, 24 Fla. 55, 3 So. 471, 12 Am. St. Rep. 183; State v. City of Sarasota, 92 Fla. 563, 109 So. 473.

If the tax certificates in this case were originally void as contended, the provisions of chapter 14572, Acts of 1929, were prima facie constitutionally effective to render valid and enforceable the tax certificates here sought to be canceled. The unconstitutional force of the statute therefore operated first against the owner of the property at the time the statute was put into effect.

Under such statute, if unconstitutional, there accrued to the property owner, and to him alone, the right to raise the ...