Seaboard Air Line Ry. Co. v. Allen
| Decision Date | 12 August 1921 |
| Citation | 89 So. 555,82 Fla. 191 |
| Parties | SEABOARD AIR LINE RY. CO. v. ALLEN. |
| Court | Florida Supreme Court |
Error to Circuit Court, Citrus County; W. S. Bullock, Judge.
Action by the Seaboard Air Line Railway Company against C. E. Allen. Judgment in favor of defendant, and plaintiff brings error. Judgment reversed, with directions to enter an order sustaining defendant's demurrers to the first and second counts of the declaration, and for other proceedings consistent with the opinion.
Syllabus by the Court
Collector may be sued for taxes illegally collected on real property. An action at law may be maintained by a taxpayer against the tax collector for the recovery back of a tax illegally assessed and collected upon real property.
Assessment on property not existing when assessed is illegal. A tax assessment upon property which, as of the time it was assessed, was not in existence, is an illegal assessment.
Action to recover from collector taxes illegally collected must be brought before he turns over the money. The action by the taxpayer to recover back taxes illegally assessed and collected must be brought against the tax collector before he turns the money collected over to the state and county authorities.
Declaration against collector for taxes illegally collected, not alleging money had not been turned over to state and county, is defective. A declaration in an action to recover from the tax collector taxes illegally assessed and collected, which fails to allege that the tax collector has not paid the money so collected over to the state and county authorities, is fatally defective.
On sustaining demurrer to special counts of declaration judgment should not be entered against plaintiff, refusing to amend, until common counts are withdrawn. When sustaining a demurrer to one or more special counts of a declaration which also contains several common counts, judgment should not be entered against the plaintiff, because he refuses to amend his special counts, until the common counts are withdrawn.
Knight, Thompson & Turner, of Tampa, and Strauss L Lloyd, of Inverness, for plaintiff in error.
George W. Scofield, of Inverness, for defendant in error.
This was an action brought by the plaintiff in error in the circuit court for Citrus county against C. E. Allen, of that county, to recover a certain sum of money which it was alleged the plaintiff had been constrained to pay as taxes upon certain property in the declaration described. It was alleged that the property, which consisted of about nine miles of railroad track and right of way, was illegally assessed for the year 1913, for which year the alleged illegal taxes were demanded and paid. The first and second counts of the amended declaration were based specifically upon the recovery of the taxes paid by the plaintiff for the year 1913; it being alleged that in October of 1914 the tax collector seized and took into his possession the property described for the purpose of collecting the alleged illegal tax, and the plaintiff was required to pay $208.64, together with $15.26 cost and the further sum of $54.17 taxes; the latter being the tax levied upon the right of way and the former tax levied upon the track and roadbed. The third, fourth, fifth, and sixth counts of the amended declaration were common counts for money lent by the plaintiff, and money paid by the plaintiff for the use of the defendant, and money received by the defendant for the use of the plaintiff, and accounts stated.
The first count of the declaration, which, as above stated, was for the recovery of taxes assessed upon the 'railroad track and roadbed,' alleges that the said assessment was illegally and erroneously made by the tax assessor, because the plaintiff did not own the 'railroad right of way' when the assessment was made, and that the 'railroad right of way was never in existence as the property of the plaintiff, and the plaintiff never owned said 9.11 miles of right of way, and therefore there was never any such property as the 9.11 miles of right of way that the tax assessor of Citrus county, Fla., could have assessed against the plaintiff.'
The second count of the declaration, which is for the recovery of the tax of $54.17, taxes on the plaintiff's right of way, which sum it was constrained to pay because the defendant threatened to levy upon and seize certain of the plaintiff's property to satisfy this demand, was an illegal and void assessment, because it is alleged that the assessment on 9.11 miles of 'right of way and railroad track' was not owned by the plaintiff at the time of the assessment, and 'was not in existence at the time, and was an excessive assessment of the plaintiff's property as to mileage in Citrus county.'
The defendant, Allen, by his counsel, interposed a demurrer to the first and second counts of the declaration, the third, fourth, fifth, and seventh grounds of which are relied upon by the defendant as being sufficient. In these grounds it is contended that the declaration does not allege in what manner the assessment, levy, and collection of the tax was illegal; second, that the allegations of the declaration concerning the invalidity of the assessment were mere allegations of conclusions of law: third, that it appears affirmatively from the declaration that the defendant was the tax collector of Citrus county, that the assessment of the plaintiff's property appeared on its face to be regular, that it was the duty of the tax collector under the laws of the state to collect the taxes, and that, having discharged his duty, he could not be held liable for his official acts; fourth, that it affirmatively appears that the defendant was acting as the agent of Citrus county and the state of Florida in the discharge of an official duty, and that in so doing he is not liable to the plaintiff in any amount of damages. The other grounds of the demurrer attack the allegations of the declaration as to the invalidity of the tax assessment, and further that the payments appear to be voluntary payments, and lastly upon the general ground that there were no facts alleged in either of the counts that amount to or constitute a cause of action against the defendant.
This demurrer was sustained, and judgment was entered against the plaintiff, because, as it was recited in the order, it refused to plead further. This was an erroneous order, and the case will have to be reversed because of it. The demurrer went only to the first and second counts of the declaration, and it left three common counts in the declaration, which had not been withdrawn, and to which the plea of the general issue had been interposed and two special pleas, averring that the money sued for had been paid to the defendant as tax collector of Citrus county in the settlement of the taxes legally due by the plaintiff, and, third, that the plaintiff on the 1st of January, 1913, operated a line of railroad in Citrus county, with various side lines and spur tracks, and that for those years the defendant did not return for taxation all of its lines and spur tracks as required by law, and it became the duty of the tax assessor to assess that portion of the side lines and spur tracks that had not been returned by the plaintiff for taxes, and that it was for the taxes due and paid by the plaintiff upon the omitted side lines and spur tracks that the action was brought.
A judgment against the plaintiff upon the defendant's demurrer to the first and second counts of the declaration should not have been entered, unless the common counts had been withdrawn. The one assignment of error is that the court erred in entering final judgment upon the demurrer to the plaintiff's amended declaration, and upon that assignment counsel for the plaintiff in error urged that the first and second counts of the amended declaration state a cause of action against the defendant. It seems to be conceded that the action brought by the plaintiff below rested upon the payment by it under a kind of compulsion of certain taxes assessed for the year 1913 upon property in Citrus county, which taxes were illegally assessed and illegally collected, and that transaction is made the subject of all the counts of the declaration. We will therefore consider the questions presented by the defendant's ...
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