City of Tampa v. Colgan

• Decision Date: 15 October 1935
• Citation: 121 Fla. 218,163 So. 577
• Parties: CITY OF TAMPA v. COLGAN et al.
• Court: Florida Supreme Court

163 So. 577

121 Fla. 218

CITY OF TAMPA v. COLGAN et al.

Florida Supreme Court

October 15, 1935

Rehearing Denied Nov. 2, 1935.

Suit by the City of Tampa against John D. Colgan and others. From a decree, plaintiff appeals.

Affirmed. Appeal from Circuit Court, Hillsborough County L. L. Parks, judge.

COUNSEL

Alonzo B. McMullen and Ralph A. Marsicano, both of Tampa, for appellant.

Sparkman & Knight, V. H. Knight, and Seth Dekle, all of Tampa, for appellees.

OPINION

DAVIS Justice.

This was a direct proceeding by a municipal government to enforce by foreclosure proceedings an alleged tax lien claimed by it against appellees' property. On a previous appeal a motion to strike certain paragraphs of defendants' answer to the city's bill was overruled and on appeal was affirmed by this court. See City of Tampa v. Colgan, 111 Fla. 538, 149 So. 587. The present proceeding being, as it is, a direct effort by a tax levying authority to enforce its own asserted tax lien against its affected taxpayer's property, with no alleged rights of third parties, such as bona fide tax certificate purchasers for value, being involved, nor any question of a bar by laches being brought into the controversy, is to be distinguished from other cases on the same subject that involve issues other than the sole issue here sought to be determined between complainant city on the one hand, and the defendant taxpayer on the other. In this connection it is to be observed that a judicial controversy involving the legality of a tax assessment or toll is, by statute, within the cognizance of a court of equity. See sections 1038, 1039 C. G. L., chapter 8586, §§ 1 2, Acts 1921.

The facts of the present suit, and the legal and equitable principles upon which the chancellor entered his decree in the court below, can best be stated by here quoting in full an opinion which the chancellor prepared and filed in the circuit court to accompany the decree herein appealed from. The chancellor's opinion is as follows:

'In this suit the plaintiff, city of Tampa, seeks the foreclosure of municipal taxes levied against certain real estate described as lots 66, 67, 68, and 69, block 6, of Davis Islands, and the improvements located thereon, for the years 1929, 1930, and 1931. It appears from the bill and the exhibits thereto attached that for each of these years the real estate in question was valued at $15,000 and the improvements thereon at $195,000, making a total assessed valuation of $210,000, and that based upon such valuations the total amount of the taxes levied for each year was $3,780. The defendant, Mirasel, Incorporated owner of the premises, attacked the assessment for each of said years upon several grounds which are summarized in following excerpts from the amended answer of said defendant:

'(1) Because the assessor: 'systematically, willfully, deliberately and intentionally discriminated against said property, as compared with similar property liable to assessments owned by other tax payers similarly situated, in that this defendant's property was assessed for each of said years at $210,000.00, as shown by copy of assessment roll attached to complainant's bill of complaint, which sum was grossly, obviously and flagrantly excessive, and was more than four times the full cash value, as defined by said ordinance hereinabove referred to, and amounts to a confiscation of its property, and denies to this defendant due process of law and the equal protection of the law.'

'(2) Because the assessor: 'Perpetrated a fraud upon this defendant in assessing its only specie of property, to-wit, real estate, at more than double its full cash value, while personal property consisting of stocks of merchandise located within the City of Tampa, and taxable therein, worth many millions of dollars, were for said years systematically, intentionally and arbitrarily assessed by said assessor at less than 25% of its full cash value.'

'(3) Because the assessor: 'deliberately, willfully and intentionally, systematically, knowingly and arbitrarily refused, neglected and omitted to assess any mortgages standing of record in the office of the Clerk of the Circuit Court, Hillsborough County, Florida, and owned by citizens of the City of Tampa, as of January 1st, 1929, 1930, and 1931, respectively, whatsoever, although same were subject to taxation and amounted to several million dollars.'

'(4) Because the assessor: 'deliberately, intentionally and willfully omitted from the tax rolls, and failed to assess for taxation, for the years 1929, 1930 and 1931, all stocks, bonds, promissory notes and accounts, which on January first of each year, were owned by residents, tax payers of the City of Tampa, Florida, and subject to, and should have been assessed for taxation in said City for said years.'

'A motion to strike the paragraphs of this answer setting up the invalidity of the assessments was filed by the city and was overruled. On appeal, this ruling was affirmed. See City of Tampa v. Colgan et al., 111 Fla. 538, 149 So. 587. Thereafter, the city filed a replication, paragraph I of which denied the affirmative matter contained in the answer of the defendant, Mirasol, Inc., and paragraph II of which asserted that said defendant was estopped to question the validity of the assessments, because John D. Colgan, the predecessor in title of said defendant, had acquired title to the premises in question for the sum of $15,500 by purchase at the foreclosure sale decreed in a suit to which the city was not a party previously brought for the foreclosure of a mortgage or deed of trust embracing said premises, and because in reporting said sale to the court the master had recited that the property was incumbered by taxes amounting to approximately $23,000, and the court had recognized the validity of said taxes and had taken the same into consideration in confirming said sale. On motion filed by the defendant, Mirasol, Inc., the second paragraph of this replication was stricken upon the ground that the facts therein alleged were insufficient to constitute an estoppel. The cause was then referred to a master for the taking of testimony, with directions to report the same, together with his findings of fact and of law, to the court. After the taking of testimony, the master filed his report, incorporating therein findings to the that for each of the years in question the assessment against the improvements should be reduced from $195,000 to $100,000, but upholding the assessment against the real estate in the amount of $15,000. Exceptions to this report have been filed by both the plaintiff and by the defendant, Mirasol, Inc.

'The second, third, and fourth grounds of the attack upon the assessments in controversy are essentially similar in nature, being predicated upon the alleged underassessment or nonassessment of various species of personal property located within the city of Tampa, and will be first taken up and considered together. With respect to these grounds, the master found that the allegations of the answer had not been sustained by the proofs. I concur in this finding. The law presumes that taxing officials have faithfully performed their official duties, and when the correctness of their official acts is challenged the burden of proof is upon the complaining party. Camp Phosphate Co. v. Allen, 77 Fla. 341, 81 So. 503; City of Tampa v. Palmer, 89 Fla. 514, 105 So. 115, 120; Hackney v. McKenny, 113 Fla. 176, 151 So. 524. It has also been held in this state that a mere omission to assess some property subject to taxation or the using of unequal valuations in the making of assessments, if due simply to oversight or error of judgment on the part of assessing officer, will not render illegal an assessment against other property, and that material injury, as the result of omission to assess property subject to taxation, or unequal valuations in assessments as made, must be shown in order to warrant judicial relief. Folsom v. Bank of Greenwood, 97 Fla. 426, 120 So. 317. Although there is testimony in this case tending to show that the stocks of merchandise of a few mercantile concerns in the city were assessed at less than their actual worth, and that a portion of the intangible property subject to taxation by the city was not assessed at all, the proofs fall far short of showing underassessment or nonassessment of such classes of property to any appreciable extent or as a result of any intentional acts or omissions on the part of the assessor. See City of Tampa v. Kaunitz, 39 Fla. 683, 23 So. 416, 63 Am. St. Rep. 202.

'The first ground of attack upon the assessments presents a question of greater difficulty. Here the charge is that defendant's property was willfully discriminated against, as compared with other similar property, in that the same was assessed at $210,000, which sum was alleged to be grossly, obviously, and flagrantly excessive, and to be more than four times the full cash value thereof.

'The principles of law to be applied in a case in which equitable relief from taxes is sought on the ground that property has been overvalued or illegally assessed are well settled in this state. The general rule is that excessive valuation per se is not sufficient as a ground of equitable jurisdiction. The impossibility of attaining exact equality in the distribution of tax burdens is recognized, and the tax assessor is accorded a wide discretion in the valuation of property for the purposes of taxation. When property has been overvalued, the taxpayer must ordinarily complain to the assessor and pursue his remedy before the administrative body provided for the equalization of assessments before he can resort to a court of equity for relief. Even when such

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