Hecht v. Shaw

• Court: Florida Supreme Court
• Citation: Hecht v. Shaw, 112 Fla. 762, 151 So. 333 (Fla. 1933)
• Decision Date: 16 November 1933
• Parties: HECHT et al. v. SHAW et ux.

151 So. 333

112 Fla. 762

HECHT et al. v. SHAW et ux.

Florida Supreme Court

November 16, 1933

Suit by F. C. Shaw and wife against Harry W. Hecht and Trustees of the State Internal Improvement Fund. From an adverse decree defendants appeal.

Affirmed except as to taxation of costs, and cause remanded, with directions. Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

Ira C Haycock, of Miami, and Cary D. Landis, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for appellants.

Richard H. Hunt, of Miami, for appellees.

OPINION

LONG Circuit Judge.

In substance the bill alleges the levy of a maintenance tax under chapter 8412, Acts 1921 (Comp. Gen. Laws 1927, §§ 1592-1594), for the year 1927, and sale of the property by trustees of the internal improvement fund, of the value of some $10,000, for the failure to pay this tax amounting in the aggregate to less than $10. Deed was executed by the trustees to the purchaser, Hecht, and thereafter suit in ejectment was instituted by him. Appellees, complainants below, filed their bill praying for restraining order temporary and perpetual, against the prosecution of the common-law action, and that the instruments of conveyance executed by the internal improvement fund be declared null and void.

There are a number of assignments of error from which one question arises to be decided by this court, and that is, Has there been a substantial compliance with the law in this case so that the deeds executed by the trustees convey a fee-simple title to appellant Hecht. From this question arises three propositions of law to be decided: First, is chapter 8412, Acts 1921, sufficient as an adoptive statute to authorize the trustees of the internal improvement fund to sell the land in controversy under sections 1546 and 1547? Second, the sufficiency of the notice of sale. Third, the constitutionality of the acts.

Chapter 8412, § 3 (section 1594, C. G. L.), contains this provision:

'In all other respects the law governing the assessment, collection and sale of lands for the non-payment of Everglades Drainage District taxes shall be and is hereby made applicable to the benefit tax as herein provided for.'

There are many instances where parts of other statutes habe been adopted, as a study of the taxation law will reveal. In this instance it is clear that the Legislature intended to provide for the sale by the tax collector with reference to this tax, and that no discrimination should be made in the collection of taxes due between the acreage tax and the maintenance tax.

'It is a general rule that when a statute adopts a part or all or another statute, domestic or foreign, general or local, by a specific and descriptive reference thereto, the adoption takes the statute as it exists at that time. The subsequent amendment or repeal of the adopted statute has no effect on the adopting statute, unless it is also repealed expressly or by necessary implication. But when the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act, but also all subsequent laws on the particular subject referred to, so far at least as they are consistent with the purpose of the adopting act. When a prior act is incorporated in a subsequent one in terms or by relation, the repeal of the former leaves the latter in force, unless also repealed expressly or by necessary implication.' Williams et al. v. State ex rel. Newberger, 100 Fla. 1567, 125 So. 358, 359; Roesch v. State ex rel. Wyman, 62 Fla. 263, 56 So. 562.

'A statute may adopt a part or all of another statute by specific and descriptive reference thereto, and the effect is the same as if the statute or the part thereof adopted had been written into the adopted statute.' 36 Cyc. 1152.

The notice given by the trustees of the internal improvement fund is in substance (omitting the description of other lands) as follows: Notice is given that under provisions of section 1546, Compiled General Laws, the trustees of the internal improvement fund will, beginning at 10 o'clock a. m., April 8, 1931, at the Capitol in Tallahassee, offer for sale, subject to redemption prior to date of sale, the following described land, title to which is vested in said trustees by virtue of Everglades drainage district tax certificates, all in Dade county, Fla.:

Lot 20 in block 1, section B, Coral Gables S/D P. B. 5. 111. Sections 7 and 8-54-41. Terms cash. Redemption will be for the amount of Everglades drainage district taxes, together with interest, penalties, and costs.

The notice is silent as to any description of assessment by certificate number, year of assessment, year of tax sale, or otherwise. Counsel contends that, because the title had passed to the trustees, it was not necessary for the notice to contain these requirements. He overlooks the fact that the right of redemption still remained in the appellees, and that the very purpose of the notice was the opportunity to redeem.

The notice recites that the trustees will offer for sale, subject to redemption, the following lands, title to which is vested in said trustees by virtue of Everglades drainage district tax certificates; that redemption will be for the amount of Everglades drainage district taxes.

There are two kinds of taxes imposed on the lands of the Everglades drainage district: One is an acreage tax imposed by authority of chapter 6456, § 5, Acts 1913, as amended by section 1534, Compiled General Laws, and until the act of 1921 was the only tax with which these lands were burdened, and this tax was recognized as Everglades drainage district tax. The other is known as a maintenance tax, imposed by authority of chapter 8412, Acts 1921, which adopts parts of the law applicable to the Everglades drainage district tax.

'In all other respects the law governing the assessment, collection and sale of lands for the non-payment of Everglades Drainage District taxes shall be and is hereby made applicable to the benefit tax as herein provided.' Section 3.

The lands involved are located, according to the notice, in sections 7 and 8, township 54, range 41 east, and are, under section 1534, Compiled General Laws, exempt from the acreage or Everglades drainage tax, but are subject to the maintenance tax. It is true that both the acreage tax and the maintenance tax come under the head of Everglades drainage tax, but we are dealing with the sufficiency of a notice and with a statute that must be construed strictly, and, a distinction between the taxes having been recognized by the adopting statute the notice is misleading, and therefore insufficient.

The court having held the motice insufficient, it is unnecessary to discuss the constitutionality of the statute; suffice it to say that this question has been many times presented to this court to test the validity of this legislation, and in every instance the court has sustained the acts. Bannerman v. Catts, 80 Fla. 170, 85 So. 336; Lainhart v. Catts, 73 Fla. 735, 75 So. 47; Forbes Pioneer Boat Line v. Board of Com'rs of Everglades Drainage District, 77 Fla. 742, 82 So. 346.

Under the authority of San Sebastian Development Corporation v. Couch, 103 Fla. 692, 138 So. 61, we are of the opinion that the chancellor erred in taxing the costs against the appellant.

It is ordered that the decree of the court be affirmed, except as to the taxing of the costs, and that the cause be remanded, with directions to tax the costs against the appellees.

CAMPBELL, Circuit Judge, concurs.

WHITFIELD, ELLIS, and BROWN, JJ., and JOHN U. BIRD, Circuit Judge, concur in the conclusion.

DAVIS, C.J., and TERRELL and BUFORD, JJ., disqualified.

CONCURRING

WHITFIELD Justice (concurring).

In levying state and county ad valorem taxes, the statutes fix the millage levies and county tax assessors ascertain the descriptions of the lands upon which the taxes are levied.

In levying acreage or ad valorem taxes in the Everglades drainage district for district taxation, the statutes not only fix the rate of taxation but also describe the lands upon which the taxes are levied. This gives the owners of the lands in the district statutory notice of the levies made under the statute upon lands described in the statute.

The statutory provisions for advertising lands to be sold for nonpayment of taxes, for tax sales, for issuing tax sale certificates, and for redeeming lands sold for nonpayment of Everglades drainage district taxes by taking up the tax sale certificates within two years from the date of the sales, are similar to the provisions for tax sales and redemptions for nonpayment of state and county taxes. After the two-year period for redemption expires, the title to the lands becomes vested in the state or in the district, which title is evidence by the tax sale certificates held by or for the state or the district. After the two-year period of redemption, lands sold for nonpayment of state and county taxes are redeemed by taking up the outstanding tax sale certificates upon making payments as required by the statutes. After the expiration of the two-year redemption period, redemptions of lands from sales for Everglades drainage district taxes, where the tax sale certificates are held by or for the district, are made by the payment of the amounts required by the statute and the issuance of a quitclaim deed by the trustees of the internal improvement fund.

Where tax sale certificates for unpaid state and county taxes or Everglades drainage district taxes are held by private parties, they may, after the redemption period of two...