Orlando Utilities Commission v. Milligan, 1737

• Decision Date: 31 October 1969
• Docket Number: No. 1737,1737
• Citation: 229 So.2d 262
• Parties: ORLANDO UTILITIES COMMISSION, a statutory commission created pursuant to the laws of Florida, and City of Orlando, a municipal corporation, Appellants, v. James MILLIGAN, Orange County Tax Assessor, Earl K. Wood, Orange County Tax Collector, and Fred O. Dickinson, Comptroller of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 262

229 So.2d 262

ORLANDO UTILITIES COMMISSION, a statutory commission created pursuant to the laws of Florida, and City of Orlando, a municipal corporation, Appellants, v.James MILLIGAN, OrangeCounty Tax Assessor, Earl K. Wood, OrangeCounty Tax Collector, and Fred O. Dickinson, Comptroller of the State of Florida, Appellees.

No. 1737.

District Court of Appeal of Florida, Fourth District.

Oct. 31, 1969.

Rehearing Denied Jan. 8, 1970.

David W. Roquemore, Jr., of Gurney, Gurney & Handley, Orlando, for appellants.

Frederick J. Ward, of Giles, Hedrick & Robinson, Orlando, for appellees.

MOORE, JOHN H., II, Associate Judge.

This is an appeal from a final judgment of the Circuit Court of Orange County, Florida, in favor of the appellees, defendants below.Appellants, who were plaintiffs below, are the Orlando Utilities Commission(Utility), a statutory commission of the City of Orlando, Florida, created and organized pursuant to Chapter 9861, Laws of Florida, 1923, and the City of Orlando, a municipal corporation.

In 1965 the Orange County Tax Assessor assessed certain real property owned by Utility for ad valorem taxes and certified the assessment to the Tax Collector who billed the Utility for taxes in the amount of $2,357.22.Plaintiffs then filed this action for declaratory relief to determine the tax exempt status of the subject property.Final judgment was entered after the trial court granted the defendants' motion for a directed verdict at the close of all the evidence.

At the time of the tax assessment and billing the subject property was owned by Utility.The Utility used the property as a Recreation area for the Exclusive use of its employees and their families.The subject property had recreational facilities on it consisting of a recreational hall, a swimming area, a boat ramp, picnic tables, and barbeque pits.The public was excluded, without exception, from any use or enjoyment of that property.The property was located several miles from Utility's operating facilities.

The Florida Constitution of 1885, F.S.A., contains the following provisions relating to tax exemptions:

Article IX, Section 1:

'The Legislature shall provide for a uniform and equal rate of taxation * * * and shall prescribe such regulations as shall secure just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, education, literary, scientific, religious or charitable purposes.'

Article XVI, Section 16:

'The property of all corporations * * * (with certain exceptions) * * * shall be subject to taxation unless such property be held and used exclusively for religious, scientific, municipal, educational, literary or charitable purposes.'

To implement the foregoing provisions of the Constitutionthe legislature has enacted the following statutes:

Section 192.06, F.S.1965, F.S.A.:

'Property Exempt from Taxation: The following property shall be exempt from taxation:

'* * *

'(2) All public property of the several counties, cities, villages, towns and school districts in this state, used or intended for public purposes, including both real and personal property of all fire, hose and hook and ladder companies, except lands sold for taxes for the use of any counties, cities, villages, towns or school districts; and including all property of municipally owned and operated public utilities held and used exclusively for municipal purposes.'

Section 192.52, F.S.1965, F.S.A.:

'Tax Exemption, Municipal Public Utilities: The real and personal property of municipally owned and operated public utilities held and used exclusively for municipal purposes shall not be subject to ad valorem or personal property taxes.'

Since Utility is a municipally owned and operated public utility, its real property is exempt from ad valorem taxation if the property is held and used exclusively for municipal purposes.This is an 'exemption' only, not an 'immunity' from taxation.Exemption presupposes the existence of a power to tax whereas immunity connotes the absence of that power.The state and its political subdivisions, like a county, are immune from taxation since there is no power to tax them.Park-N-Shop, Inc. v. Sparkman, Fla.1957, 99 So.2d 571.A municipality can be taxed but may be exempt if it meets the statutory criteria for exemption.

The Florida Supreme Court held in Maxcy, Inc. v. Federal Land Bank of Columbia, 1933, 111 Fla. 116, 150 So. 248and151 So. 276:

'The principle has been more than once affirmed in this state that the Constitution must be construed as a limitation upon the power of the Legislature to provide for the exemption from taxation of any classes of property except those particularly mentioned classes specified in the organic law itself.'

It is further stated in the Maxcy case that statutes granting exemptions should be strictly construed.

A right of exemption is not to be determined altogether by the character of the institution which owns and uses the property, but it is to be determined by the use to which the property is put in the ownership of the...