Dade County v. Salter
| Citation | 194 So.2d 587 |
| Decision Date | 11 May 1966 |
| Docket Number | No. 34035,34035 |
| Parties | DADE COUNTY, Florida, a political subdivision of the State of Florida, et al., Petitioners, v. Harry SALTER, Homer S. Grossman, Harry L. Nathenson and Nathan Manilow, Respondents. |
| Court | Florida Supreme Court |
Thomas C. Britton, County Atty., and Stuart Simon, Asst. County Atty., for petitioners.
Patton & Kanner and William H. Morrow, Jr., Miami, for respondents.
By a petition for certiorari we are asked to review a decision of the Third District Court of Appeal, which reversed the dismissal of a complaint against an allegedly discriminatory ad valorem tax assessment. Salter v. Dade County, 170 So.2d 57.
We must decide whether the complaint stated a cause of action absent an allegation that the property of the complainant had been assessed in excess of full cash value.
By their amended complaint, Salter, and others, alleged that for the year 1961, the Dade County Tax Assessor systematically failed to assess real property, including their own, at full cash value as required by Section 193.11, Florida Statutes, F.S.A. They asserted that property similar to theirs was assessed at 47.27% Of full cash value, whereas their property was assessed at 87% Of full cash value. Obviously, their property had not been assessed in excess of full cash value. Walter v. Schuler, Fla., 176 So.2d 81. They further alleged that because of the disproportionate assessment they had overpaid their taxes for 1961 by $6,103.65, and are entitled to a refund in this amount. Respondents prayed that their assessment be reduced to the percentage level which they alleged was employed on similar property. They do not urge that all property be assessed at full cash value. Dade County moved to dismiss the amended complaint on two grounds: (1) Failure to state a cause of action and, (2) The prayer of the complaint sought to compel a constitutional officer to perform an act contrary to law. The motion was granted without specification as to which ground. The District Court reversed. Salter v. Dade County, supra. Its decision is now here for review.
Petitioner cites for conflict, inter alia, the decision of this Court in Cosen Investment Co. v. Overstreet, 154 Fla. 416, 17 So.2d 788. Cosen originated with a complaint against the Dade County Tax Collector to enjoin the collection of a portion of the taxes assessed against plaintiff's property. It alleged the assessment of plaintiff's property at 100% Of full cash value, as compared to an alleged assessment of 'nearby property' at 75%. In effect, plaintiff wanted his assessment lowered to 75% Of full cash value. This Court, noted adoption of the homestead exemption amendment, Article X, Section 7, Florida Constitution, F.S.A., and its effect on Chapter 20722, Acts of Florida, 1941, the predecessor of Section 193.11, Florida Statutes, F.S.A. We rejected our prior holding, Camp Phosphate Co. v. Allen, 77 Fla. 341, 81 So. 503, that an assessment roll was valid if uniform and equal, even though less than for full cash value. In Cosen the Court held:
'To grant appellant's request would require us to order a constitutional, (sic) official (to) act contrary to the statute and by so doing the effect of his act would result in rendering unequal the tax burden to the tax payers of Dade County.'
The District Court in the instant case conceded that 'at first glance' Cosen, supra, seemed to support the Chancellor. However, it refused to follow it, insisting that this Court in State ex rel. Glynn v. McNayr, 133 So.2d 312, had 'specifically rejected the theory behind the Cosen v. Overstreet case, supra, that all property in Dade County must be assessed at full cash value for the year 1961.'
The District Court erroneously interpreted State ex rel. Glynn v. McNayr, supra. The case involved a petition for mandamus attacking the proposed 1961 tax roll of Dade County. It sought to compel the adoption of another tax roll based on a particular reassessment which all agreed was as invalid as the one attacked. We affirmed the trial court's denial of the petition for two reasons: (1) The new tax roll was as defective as the original one and mandamus will not be granted to compel an illegal act, and, (2) Compliance with the requested command would have been physically impossible within the time limitations imposed by the county's financial needs.
We specifically emphasized that we were not approving the 1961 tax roll or passing on its validity, a decision which we said 'would have to await an appropriate attack'. 133 So.2d p. 317. Cosen Investment Co. v. Overstreet, supra, was not mentioned. However, the rule of Glynn is consistent with Cosen in its ultimate result. Obviously, the District Court here misinterpreted this Court's decision in Glynn, supra. In so doing, it created a conflict of the type discussed in Pinkerton-Hays Lumber Co. v. Pope, Fla., 127 So.2d 441. In view of our discussion of Glynn, supra, it is obvious that the decision of the District Court, in failing to follow Cosen Investment Co. v. Overstreet, supra, also conflicts with our decision in that case. For these reasons, we have jurisdiction. Article V, Section 4(2), Florida Constitution. In finding jurisdiction, we have disposed of the merits.
We have examined the rationale underlying our decision in Cosen Investment Co. v. Overstreet, supra, and hold that it is still applicable. To grant the relief sought here would be to direct the petitioner to perform an act contrary to law. The respondents made no claim that their property was assessed in excess of full cash value. We hold that the amended complaint fails to state a cause of action. For this reason, we quash the decision of the District Court of Appeal, Third District, and remand the cause with directions to reinstate the order dismissing the amended complaint.
It is so ordered.
ON PETITION FOR REHEARING
Upon further consideration of the record in this case, we are convinced that to adhere to the opinion of the Court filed May 11, 1966 would work a grave injustice upon the respondents and result in denying the right to the equal protection of the laws and right to equality and uniformity in taxation of their property, both basic constitutional guaranties.
In our opinion of May 11th it is stated:
Whereas the pertinent allegations of the amended complaint in this cause are as follows:
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