Draughon v. Heitman

• Decision Date: 19 February 1936
• Citation: 124 Fla. 24,168 So. 838
• Court: Florida Supreme Court
• Parties: DRAUGHON, Court Clerk, et al. SAME v. HEITMAN et al. SAME v. PINELLAS GROVES, Inc.

168 So. 838

124 Fla. 24

DRAUGHON, Court Clerk, et al. SAME v. HEITMAN et al. SAME v. PINELLAS GROVES, Inc.

Florida Supreme Court, Division A.

February 19, 1936

Rehearing Denied June 29, 1936.

Suits by Florida Heitman, individually and as trustee of the estate of Harvie E. Heitman, deceased, and another, and by Pinellas Groves, Incorporated, against W. L. Draughon, as Clerk of the Circuit Court for Lee County, and another. From decrees defendants appeal.

Reversed and suits dismissed.

BROWN J., and ELLIS, P.J., dissenting. Appeal from Circuit Court, Lee County; George W Whitehurst, judge.

COUNSEL

Maguire & Voorhis, of Orlando, for appellants.

Sheppard & Clements, W. J. Wood, and Jim C. Clements, all of Fort Myers, for appellees.

OPINION

DAVIS Justice.

In 1931 complainants in the court below were owners of a parcel of taxable real estate described in the bill as the 'Earnhardt building,' which was assessed on the tax rolls of Lee county in the amount of $3,510. That the property so assessed was income-producing property is a legitimate inference to be drawn from the description of it set forth in the pleading. Furthermore, that complainants did not pay, nor offer to pay, any taxes upon this real estate for the year 1931, or for any year since that time, is apparent also from the bill. Thus it was that as a direct result of complainants' delinquency in failing to pay their taxes on the parcel of income-producing real estate the property was sold in 1932 for such taxes. Under date of February 20, 1935, the holder of the tax certificate representing the sale applied for a tax deed to be issued pursuant to law. This suit, in the court below, was brought to have a decree entered canceling as a cloud upon complainants' title the tax certificate issued thereon for the 1931 taxes and to have complainants' title to said Earnhardt building, the subject of the tax sale, established, quieted, and confirmed as against the attempt of the holder of the tax certificate to obtain a tax deed pursuant to law in the event that the taxes assessed against complainants, with penalties imposed incident thereto, are not paid.

No complaint is made as to the manner of assessing the taxes for which the tax deed is about to issue. For aught that appears to the contrary, the tax imposed as a real estate tax is a just and proper one. It is only because of its alleged relationship to the acts of taxing officers with respect to other taxes on other classes of property that the enforcement of said taxes on complainants' real estate is alleged to be illegal. That complainants have stood silently by since 1931 without making any attempt to have rectified the conditions they complain of is admitted by the bill. Indeed, the complainants practically concede in their pleading that prior to the application for a tax deed upon their property they had no real objection to the validity of the taxes involved in this proceeding, because they undertake to excuse their nonpayment of the taxes by averring that for almost four years they have been attempting, without success, to borrow sufficient money to pay the taxes assessed on their real estate.

Sympathetic though we may be with the plight in which these ladies, who are complainants in this suit, may now find themselves (their condition, however, is no different from that of a great many other people who attempt to hold extensive holdings of real estate, the taxes upon which they are unable to meet), we are unable to agree with the conclusion that the bill of complaint in this suit states a cause for equitable relief of any character whatsoever. If it does, then by the same token there is not a single taxpayer in the state of Florida, from the richest corporation to the poorest landowner, who may not avail himself of a stereotyped copy of the present bill of complaint as a means of defeating the collection of any of the real estate taxes which may have been assessed and put on the tax rolls for the year 1931.

The sovereignty of the state of Florida depends upon its ability to enforce its laws for the levy and collection of taxes essential to support the government, the public schools, and the many objects of public enterprises which have gradually, in the course of governmental progress, become a part of the financial requirements of our commonwealth. That sovereignty is just as much defeated by refusing to give a remedy due by law to a tax certificate purchaser who has bought a certificate on property put up by the state and sold to the highest bidder as a means of compelling the taxpayer to pay what is due, as it would be defeated if the tax itself was entirely left off the roll.

A tax assessment without the ability of the state to sell the subject of the assessment if the taxes are not paid would be a mere brutum fulmen. Without buyers a tax sale would be a fruitless gesture. Without giving to the buyers some fair assurance that what the state holds out to them to be purchased is an enforceable lien against the affected delinquent tax property, there will be no incentive to buyers to participate in tax sales. And the final result will be that every item of taxable property in the state of Florida will, of necessity, be knocked down and sold to the state to be held ad infinitum exempt from taxation, although the enjoyment of the property is continued in the hands of the delinquent owner who may still collect all available revenues therefrom and use them as he pleases to the prejudice of that uninformed class of simple minded souls who may unwittingly fail to appreciate the beneficences that legal technicalities of a kindly state holds in store for those who, like the prodigal son of Biblical times, may profit by their prodigality.

The taxpayers in this case are utterly without standing in a court of equity to complain of some fanciful increase in taxes by reason of the alleged failure of the tax assessor of Lee county to do his duty in placing on the tax rolls the large amounts that are allegedly liable on intangible property subject to taxation in that county, after waiting for four years, or more, to complain of the alleged dereliction in duty.

The constitutional amendment to section 1 of article 9, ratified in 1924, separately classified intangibles for tax purposes and made the same no longer subject to general property taxation in the same class as tangible personal and real property. The adoption of that amendment required special statutory action by the Legislature to put it into effect. Therefore it was not self-executing. This is so, because under the terms of the amendment itself intangible property became subject only to special taxation as a separate class at 'special rate or rates' to be so levied by the Legislature that 'the taxes collected therefrom' could be apportioned by the Legislature to some legislatively declared object and so as to be 'exclusive of all other state, county, district and municipal' taxes on the same property.

Prior to enactment of chapter 15789, Acts 1931, Ex. Sess., which did not become effective until January 1, 1932, the State Legislature had provided no means for executing the purpose and intent of the 1924 constitutional amendment on the subject of taxation of intangible personal property. That amendment, be it observed, limited the taxation of intangible property at a rate not to exceed five mills on the dollar and required such rate to be fixed by the Legislature. But between the date of ratification of the constitutional amendment of 1924, and the convening of the 1931 Legislature, no legislative attempt to carry out the provisions of the amended Constitution was successful. Therefore the status of the intangible property of all kinds, in so far as the taxes of 1931 are concerned, was at all times, to say the least of it, doubtful. In view of this fact, now can it be truthfully alleged as a matter of law that the tax assessor of any particular county, such as Lee county, committed a legal fraud upon other taxpayers by deliberately, illegally, willfully, intentionally, arbitrarily, and systematically omitting from the tax rolls of his county intangible property, since it was only subject to a special and limited kind of taxation, the provision for imposing which the Legislature had never carried into effect in so far as that year was concerned?

Our view is that the separate constitutional classification of intangibles for taxation provided for by amended section 1 of article 9 at special rate or rates for any purpose that the Legislature should elect to apportion the proceeds (that is, for any state, county, municipal, or school purpose the Legislature selected as the object of an appropriation of such taxes when collected) so takes intangibles out of the class of general taxable real and tangible personal properties in this state that no general property taxpayer can legally avoid the payment of his general property taxes otherwise lawfully levied, assessed, and made enforceable for ordinary state, county, municipal, and school purposes through local taxing processes, on the ground of alleged discrimination in omitting to tax intangible properties in any year that intervened between the 1924 ratification of the intangible property tax amendment and the 1931 act of the Legislature which first put that amendment into practical operation as of January 1, 1932.

But let us assume that intangible properties had been placed upon the tax rolls of Lee county for the year 1931, even though chapter 15789, Acts 1931, was not then in effect. At what rate of taxation (which could not exceed the over all constitutional limit of 5 mills) would such intangible properties have been taxed and for what purposes would the taxation have been levied? For the...