Hackney v. Mckenney

• Decision Date: 06 December 1933
• Citation: 151 So. 524,113 Fla. 176
• Parties: HACKNEY v. McKENNEY, Tax Collector.
• Court: Florida Supreme Court

151 So. 524

113 Fla. 176

HACKNEY v. McKENNEY, Tax Collector.

Florida Supreme Court

December 6, 1933

Rehearing Denied Dec. 19, 1933.

En Banc.

Suit by E. S. Hackney against Clyde McKenney, as Tax Collector of Orange County. From a decree dismissing the complaint, the complainant appeals.

Affirmed.

On Petition for Rehearing. Appeal from Circuit Court, Orange County; F. A Smith, Judge.

COUNSEL

G. P Garrett, of Orlando, for appellant.

Cary D Landis, Atty. Gen., Robert J. Pleus, Asst. Atty. Gen., and Tilden & Hays and W. H. Poe, all of Orlando, for appellee.

An original bill of complaint against the tax collector was filed herein, June 29, 1933. The amended bill was filed July 17, 1933.

The complainant below, appellant here, in effect, alleges: That he is a nonresident owner of and taxpayer upon real estate and also of personal property consisting of furniture and equipment in hotels in the city of Orlando, Orange county Fla.; that he has paid his real estate tax for 1932; that he owns no personal property located in the county which was omitted from the state and county tax roll for 1932, save two secondhand tractors and harrows, the true cash value of all of which on January 1, 1932, was $120; that the total valuation of all real estate on the state and county assessment roll for 1932 was fixed by the county tax assessor at $19,673,840; that the total assessed valuation of all personal property located in the county for 1932 is $1,773,304, consisting of a public utility assessment by comptroller of $758,534, and an assessment by the county tax assessor of all other personal property in the county aggregating $1,014,770; that, in the assessment of the real and personal taxable property in Orange county for 1932, the tax assessor 'deliberately and intentionally omitted from said tax assessment roll for said year many millions of dollars of value of properly taxable personal property'; that the failure to properly assess all taxable personal property in the county 'is not due to errors of judgment or incorrectness or unintentional inequalities in assessment but is the result of a deliberate scheme, and an intentional and systematic denial to persons in the same situation with others of that uniformity which the law requires'; that 'the failure of the said tax assessor to assess and the said tax roll to contain, all of the taxable property in Orange County Florida, subject to taxation upon a fair proportionate basis of valuation, is an intentional failure on the part of the said officer to include in said tax assessment roll many tracts of land and many articles of personal property which the said tax assessor well knew should have been assessed for taxation purposes; that said omission of said taxable property from said tax roll was known to the Board of County Commissioners for Orange County, Florida, at the time that said tax roll was presented in July 1932, for equalization purposes, and at the later time when said board accepted said assessment roll as correct and levied the County taxes levied for the year 1932.' That plaintiff attaches a comparative table for 1932 of taxable personal property located in the city according to the city tax roll and according to state and county roll for 1932; that the city assessments are far greater than those for the state and county; that all of the persons assessed on said city roll were properly assessed, and that the amounts for which they were assessed on the city roll were in all cases certainly no more than the fair value of their taxable property; that 'both the City assessor and State and county assessor exempted $500.00 in value of household goods as required by the 1930 amendment to section 11, article 9 of the State Constitution. Using the City assessment valuation as 100% of the cash value of the property assessed, approximately $1,000,000.00 of taxable personal property in the City of Orlando alone was omitted from the State and county tax roll for the year 1932, which was shown on the City assessment roll for 1932, and on a 25% basis, $250,000.00 of taxable valuations of personal property were omitted from the State and County tax roll of Orange County, Florida, for the year 1932 in the City of Orlando alone'; that Orange county 'embraces within its borders additional towns, communities and municipalities, including, among others, the City of Winter Garden, City of Ocoee, the City of Winter Park, the community of Pine Castle, the community of Taft, the community of Bithlo and the community of Maitland, in each of which there is located an appreciable amount of taxable personal property, a large proportion of which plaintiff charges was deliberately and intentionally omitted by the tax assessor of Orange County, Florida, from the State and County tax rolls of Orange County, Florida, for the year 1932'; that the omission to assess said personal property for the Orange County, Florida, assessment roll for 1932 was not an inadvertence or an error or oversight. It was brought to the attention of the said county tax assessor during the period that he was preparing said tax assessment roll that much taxable property was being omitted and being underassessed; that the state and county assessment roll for Orange county 'for 1932 is practically a copy of the Orange County, Florida, assessment roll for 1931. No effort was made by the tax assessor of Orange County, Florida, to correct or change the errors of valuation existing in the 1931 assessment roll'; that 'for many years last past, it has been the continued practice of said County assessor of taxes for Orange County, Florida, to prepare his tax roll for each year from the tax roll of the preceding year, without any independent or new inquiry into the taxable property to be assessed for the current year'; that, 'with regard to real estate, this is a serious matter, in view of the various changes of ownership and changes in value and constant improvements and deterioration in the real estate assessed from year to year; with regard to personal property, however, this practice is a still more serious violation, in spirit as well as in letter, of the tax laws, for the reason that taxable personal property is assessed to individuals and of the individuals assessed in any one year some die each year, and some move away each year. Moreover the personal property assessments being largely assessments of stocks of merchandise, same are subject to fluctuations in prices and turn over. Thus it is a fact, that the Orange County, Florida, personal property assessment roll for the year 1932, is replete with fictitious assessments against deceased persons, and against persons who have moved away, or disposed of their personal property, or who have gone into bankruptcy or who have otherwise become non-chargeable with the taxes assessed against them; on the other hand, hundreds of persons have in past years settled in Orange County, Florida, and become taxable in this county, who are omitted from said assessment roll for 1932 because they did not appear on the assessment roll for 1931, when they were not taxable in the County of Orange and State of Florida; as an example that the Board of County Commissioners were fully cognizant of the fact that the tax assessor of Orange County, Florida, was omitting personal property from the tax assessment roll of Orange County, Florida, for 1932, plaintiff cites the case of V. W. Estes, then Chairman of the Board of County Commissioners, whose name appears on the City tax roll for 1932 as owning taxable personal property of the assessed value of $1,350.00 for household personal property and $325.00 for office personal property. Yet said Chairman of the Board of County Commissioners was entirely omitted from the personal property tax roll of Orange County, Florida, for the year 1932. Again E. O. Tanner, S. S. Sadler, R. M. Shearer and Arthur E. Clerk, the other four members of the Board of County Commissioners of Orange County who assisted in equalizing the Orange County, Florida, tax roll for 1932, owned personal property taxable in Orange County, Florida, which should have been taxed for 1932, yet their names are omitted from the 1932 personal tax assessment roll; again, the County tax assessor has wholly failed and omitted to assess himself for taxable personal property on the assessment roll for the year 1932, although plaintiff alleges the fact to be that said County tax assessor owned taxable property for said year, and well knew that he was taxable therefor; that on a fair conservative valuation of all personal property in Orange County, Florida, deliberately and intentionally omitted from the said State and County tax roll for 1932, according to a systematic plan to omit the same, carried out by the tax assessor and joined in by the County Commissioners of Orange County, Florida, many millions of dollars of taxable personal property, properly taxable as of January 1, 1932, were deliberately and intentionally omitted from said State and County assessment roll for 1932.' That the tax assessment roll for Orange county, Fla., as compared with reference to taxable personal property, violates the provision of section 1 of article 9 and sections 1, 12, of the Declaration of Rights of the Florida Constitution, and section 10 of article 1 of the United States Constitution, and the Fourteenth Amendment to said Constitution of the United States; and plaintiff further says that any enforcement by the defendant of said personal property tax on the tax assessment roll for the year 1932 likewise constitutes a violation of each of said constitutional rights and prerogatives of the plaintiff and those situated like the plaintiff; that the defendant is now threatening to enforce the collection as...