Rast v. Hulvey

• Decision Date: 23 January 1919
• Parties: RAST, Tax Collector of Duval County v. HULVEY.
• Court: Florida Supreme Court

80 So. 750

77 Fla. 74

RAST, Tax Collector of Duval County v. HULVEY.

Florida Supreme Court

January 23, 1919

Appeal from Circuit Court, Duval County; D. A. Simmons, Judge.

Bill of complaint by George W. Hulvey against John W. Rast, as Tax Collector of Duval County. Temporary injunction granted, and demurrer to bill overruled, and defendant appeals. Orders reversed.

Syllabus by the Court

SYLLABUS

Section 1 of article 9 of the Constitution of Florida prescribes that the Legislature may except from taxation such property as may be exempt by law for municipal, educational, literary scientific, religious, and charitable purposes. Paragraph 3 of section 4 of chapter 5596, Acts of 1907 (Comp. Laws 1914 s 431), provides that such property of educational, literary benevolent, charitable, and scientific institutions within this state as shall be actually occupied and used solely for the purposes for which they have been organized shall be exempt from taxation. Under the provisions of this statute property belonging to an individual that is not being used solely for school purposes, but is also being used by such individual as his home for living quarters and for uses directly connected with the family, is not exempt from taxation. It was not the intention of the Legislature to exempt from taxation property used for educational purposes, and other purposes jointly.

Under the law all real and personal property in the state, not expressly exempted therefrom, is subject to taxation, and all laws exempting property from taxation should receive a strict construction, and no property should be held to be within the exemption, unless it is clearly within the terms of the statute granting immunity from taxation.

Section 16 of article 16 of the Constitution of Florida has no applicability to this case.

COUNSEL Van C. Swearingen, Atty. Gen., and Worth W. Trammell, Asst. Atty. Gen., for appellant.

W. M. Toomer and W. H. Surrency, both of Jacksonville, for appellee.

OPINION

WILSON Circuit Judge.

The appellee, George W. Hulvey, on the 4th day of August, 1917, filed in the circuit court in and for Duval county his bill of complaint against John W. Rast, as tax collector of Duval county, Fla. The bill, omitting the formal parts and the prayer, reads as follows:

i. That your orator is the owner in fee simple of those certain lands situate and being in the county of Duval, state of Florida, described as follows:

That certain irregular tract, parcel or lot of land called 'Murray Hill Park,' on the map of Murray Hill Heights as recorded in Plat Book 2, page 87, of the current public records of Duval county, Fla., and bounded easterly by Park Terrace and Madison avenue; westerly by Edgewood avenue and Seventeenth street; northerly by unplatted and irregular tract of land, numbered on said plat as 76 in large numerals, and containing six acres more or less.

That located on said lands are several buildings and an open air gymnasium all of which were designed and intended for use, and for more than three years next preceding the filing of this bill, have actually been used by your orator in conducting a private school for boys and young men, which school is popularly known as the 'Florida Military Academy.' That said academy holds annual sessions and provides rooming and dining accommodations for the students and cadets in attendance upon it, and is conducted in the manner and method customary, in institutions of a similar kind.

That the main building located on the property is about 200 feet in length, 50 feet in breadth, three stories high, and has a wing 30 feet by 40 feet, two stories in height; that on the first floor are the kitchen, dining room, superintendent's apartments, offices, sitting room, library, reading room and bedrooms for 16 or more cadets; that the second floor contains a study hall, seven classrooms, and a lobby and lounging hall; that on the third floor are located rooms for 60 or more cadets, baths, washrooms, commandant's quarters and clubroom.

That your orator's family, during the time said school has been conducted as aforesaid, have lived upon and occupied said premises as their home and place of abode. That your orator's family actually occupy for living quarters and for uses directly connected with the family, as such, a portion of the first floor of the main building in extent slightly more than one-sixth of the space comprised by the floor, consisting of bedrooms and a dining room grouped at one end of said building, and one room used as a library and living room at the opposite end of said building on the same floor, the library being also used by the students and cadets in attendance at said school, together with a room located about midways said building on the third floor thereof used as a guest's chamber.

That your orator's family consists of himself and his wife, Alice I. Hulvey, who, with the assistance of a corps of from seven to nine teachers, including a retired United States army officer detailed to said school for military instructions, conduct said school during each year for a period of approximately 8 1/2 months, but during vacation of said school your orator's family occupy said premises as their home.

That by means of the operation and conduct of said school your orator's family earn their livelihood, and that your orator has no employment, profession, business or occupation other than that afforded by the operation of said school, to the conduct of which your orator's time may be said to be exclusively devoted; and that said buildings and the premises upon which the same are located have never been, nor are they now, used for any other purpose than as hereinabove specified.

II. Your orator further alleges that the state of Florida and the county of Duval, through their proper officers, have heretofore levied and assessed upon said above-described premises for the year 1916 state and county taxes amounting to the sum of, to wit, $148.65; whereas, by the Constitution and laws of the state of Florida, said premises, so used and occupied as aforesaid, are exempt from taxation and are not assessable.

III. In consideration of the premises alleged, your orator respectfully represents unto the court that the aforesaid tax amounting to the sum of $148.65 is wholly illegal, and that relief against the enforcement thereof is properly to be had within the equitable jurisdiction of this court.

IV. That the said John W. Rast is the tax collector of said Duval county, and as such officer is charged with the duty of enforcing payment of taxes due said county and state. That notwithstanding the illegality of said tax so levied and assessed upon your orator's property as aforesaid, to wit, upon the real estate hereinabove described, said tax collector is advertising said property for sale to the 6th day of August, 1917, in satisfaction of the amount of said tax and the costs of said sale; and your orator alleges that sale of said premises will actually be made unless by interposition of this court said officer shall be restrained therefrom.

The bill then prays for a temporary restraining order against John W. Rast, tax collector, which was granted by the chancellor on the 3d day of August, 1917.

On the 30th day of August, 1917, the appellant, by and through the Attorney General, filed the following demurrer to the bill of complaint, which demurrer, omitting the formal parts, is in the words and figures as follows, to wit:

1. That from the allegations in said bill of complaint it does not appear that the assessment of taxes in the county of Duval, for the year 1916, as therein complained of, was in any particular illegal and void.

2. That from the allegations in the said bill of complaint it does not appear that the said tax levied and assessed, as alleged in complainant's bill of complaint, amounting to $148.65, is illegal and void.

3. That the complainant, George W. Hulvey, has not, in his said bill of complaint, made out or set up such a case as to entitle him to relief in a court of equity, or any relief against defendant touching the matters and things therein enumerated or any other such matters.

4. That from the allegations in the said bill of complaint it does not appear that the premises therein described could be exempted from taxation as provided in section 1 of article 9 of the Constitution of Florida.

5. That from the allegations in the said bill of complaint it does not appear that the premises therein described could be exempted from taxation under the provisions of paragraph 3 of section 4 of chapter 5596, Acts of 1907, Laws of Florida.

6. That from the allegations in the said bill of complaint the property therein described is the property of a private party, and there is no constitutional or statutory provision in the law of this state exempting such property from taxation.

On the 25th day of February, 1918, the chancellor entered an order overruling the demurrer to the bill of complaint and requiring the appellant to plead over on or before April rules. Thereafter, on the 6th day of March, 1918, entry of appeal was filed and recorded.

There are four assignments of error. The first...