Dick v. State ex rel. Harris, 3933

• Decision Date: 29 May 1963
• Docket Number: No. 3933,3933
• Citation: 153 So.2d 844
• Parties: Sidney F. DICK, as Tax Assessor of the County of Hernando, State of Florida, Appellant, v. STATE of Florida ex rel. Guy HARRIS, James Griffin, Thomas R. Dawson, A. L. (Roy) Snow and L. T. Patrick, as and constituting the Board of County Commissioners of Hernando County, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 844

153 So.2d 844

Sidney F. DICK, as Tax Assessor of the County of Hernando, State of Florida, Appellant, v. STATE of Florida ex rel. Guy HARRIS, James Griffin, Thomas R. Dawson, A. L. (Roy) Snow and L. T. Patrick, as and constituting the Board of County Commissioners of Hernando County, Florida, Appellees.

No. 3933.

District Court of Appeal of Florida, Second District.

May 29, 1963.

C. John Coniglio, Wildwood, and E. R. Mills, Jr., Ocala, for appellant.

E. S. MacKenzie, Brooksville, and Arthur A. Simpson and W. S. Rodgers, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.

SMITH, Judge.

This is an appeal from a peremptory writ of mandamus, issued upon the motion of the appellees, as and constituting the Board of County Commissioners of Hernando County, commanding the appellant, as Tax Assessor of Hernando County, to promptly '* * * carry out the computation and extensions of taxes on the 1962 Tax Assessment Roll for Hernando County * * * in accordance with the equalization as effected by Petitioners sitting as a Board of Equalization, and upon said computations and extensions to turn over to the Board of County Commissioners * * * for examination and comparision, the original and two copies of said Assessment Roll. * * *'

Upon the petition filed in the name of the State of Florida upon relation of the individuals comprising and acting as the Board of County Commissioners of Hernando County (hereinafter referred to as the Board), the lower court issued an Alternative Writ of Mandamus, directed to the appellant, hereinafter referred to as the Tax Assessor. The alternative writ recites that the Tax Assessor delivered the 1962 Hernando County Tax Roll to the Board for the purpose of hearing complaints and receiving testimony as to the value of any real or personal property, as fixed by the Tax Assessor, and for the purpose of perfecting, reviewing and equalizing the assessment; that the Board heard the complaints of numerous property owners and considered such complaints item by item, and parcel by parcel, as they appeared on the Tax Roll; that the Board did perfect, review and equalize the assessment; and that this equalization was certified to the Tax Assessor, who thereafter certified to the Board the total amount of taxable property on the assessment roll as it existed after the Board's equalization. The alternative writ further recites that the Board certified by resolution to the Tax Assessor the amount to be raised for the County, Special School Districts, and other Special Districts, predicated upon the applicable millages; and that the Board directed the Tax Assessor (1) to calculate and carry out the total amount of county taxes, (2) to prepare the recapitulatory tables, (3) to deliver the Tax Assessment Roll to the Board with his affidavit in order that the Board might examine and compare the assessment roll and make any corrections required, and (4) to endorse the Board's certificate that the assessment roll was correct, in order that the Tax Assessor might issue his warrant and transmit the Tax Roll to the County Tax Collector. The alternative writ charges that the Tax Assessor refused to carry out the computation and extension of taxes on the basis of the tax assessment roll as equalized by the Board; that the Tax Assessor failed and refused to deliver the Tax Roll to the Board; and that such refusal hampered and delayed the Board in the collection of taxes and thereby prejudiced the Board in carrying on the business of the County. The court concluded the alternative writ by commanding the Tax Assessor to forthwith perform the duties of his office as aforesaid, or to appear before the court to show cause why he refuses to do so.

The Tax Assessor moved to quash the alternative writ on the ground that the Board was not a proper relator since it did not have a direct interest in the action sought to be coerced, and no benefit could accrue to it by the performance of that action. The motion to quash was denied.

The Tax Assessor answered, first raising the question presented in the aforesaid motion, and then contending that the actions of the Board, in its equalization, amounted to a general revision of the valuations and an independent assessment of the property listed on the Tax Assessment Roll. The Tax Assessor also contended that the Board had unlawfully delegated its duties as a Board of Equalization to other parties. Upon motion of the petitioners, the court struck these portions of the Tax Assessor's answer, and an amended answer with substantially the same allegations met the same fate. Upon motion, the peremptory writ of mandamus was issued, the court finding that the duties required to be performed by the Tax Assessor by the command of the alternative writ are statutory duties of a ministerial nature which the Tax Assessor was obligated to perform. We affirm.

In submitting this appeal on the merits, the Tax Assessor has included a suggestion to this court that it is without jurisdiction to entertain the appeal. He states that, although the Peremptory Writ of Mandamus was issued by the court below, the court did not enter a final judgment awarding or granting to the relators the peremptory writ, and that for the lack of such a final judgment there is no appealable order. The Tax Assessor cites as his authority the decisions in City of Bradenton v. State ex rel. Perry, 1935, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400, and City of Miami Beach v. State ex rel. Pickin' Chicken of Lincoln Road, Inc., Fla.App.1961, 129 So.2d 696. In the Bradenton case, the Supreme Court pointed out that:

'In the foregoing opinion the court has been at some pains to outline the proper course of procedure in mandamus cases such as the one now before the court, because of the large number of appeals in mandamus cases that have recently appeared in this court as to which the controversies involved have been largely, if not entirely, concerning questions of practice and procedure rather than propositions of substantive law.'

The Court had stated (118 Fla. at 842, 160 So. at 508) that:

'On the completion of the hearing of an application for a peremptory writ of mandamus the usual procedure is for the court to enter its formal judgment awarding or denying the peremptory writ. Such final judgment is usually separate and distinct from the peremptory writ itself, because the peremptory writ is supposed to issue as a consequence of the judgment awarding it.' (Emphasis added)

In the Miami Beach case the trial court first entered a peremptory writ and then, noting the lack of finality thereof, entered the final order from which the appeal was taken. When a jurisdictional question was raised, the District Court of Appeal found that the judgment awarding or granting the peremptory writ entered after the issuance of the peremptory writ constituted an appealable final order, relying on the language quoted above from the Bradenton case.

The peremptory writ issued in this cause incorporated in one document, signed by the judge, both a final judgment awarding the peremptory writ and the...