Southwest Enterprises, Inc. v. Frasse

• Decision Date: 18 January 1934
• Citation: 113 Fla. 770,152 So. 175
• Parties: SOUTHWEST ENTERPRISES, Inc. v. FRASSE et al.
• Court: Florida Supreme Court

152 So. 175

113 Fla. 770

SOUTHWEST ENTERPRISES, Inc. v. FRASSE et al.

Florida Supreme Court

January 18, 1934

En Banc.

Suit between the Southwest Enterprises, Incorporated, and Marion Frasse, joined by her husband and next friend, W. H. Frasse. From the judgment rendered, the former appeals.

Affirmed on condition in accordance with opinion.

ELLIS and BROWN, JJ., dissenting. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Frederick W. Schmitz, of Coral Gables, for appellant.

Ernest E. Roberts, of Miami, for appellee.

OPINION

DAVIS Chief Justice.

Section 44 of chapter 13972, Special Acts of 1929 (Charter of the City of Coral Gables), Laws of Florida, is as follows:

'The general law of the State of Florida upon the subject of taxation shall apply to and govern in the assessment, levy and collection of taxes in the City of Coral Gables and in the return and sale of property delinquent therefor; the sale or other disposition of tax sale certificates or the redemption thereof and the issuance of tax deeds, and shall apply also and govern in respect to the powers, duties and liabilities of persons and property touching and concerning such taxes, and shall have full force and effect in said City as far as the same may be applicable, except as herein otherwise provided.'

In this proceeding the complainant below invoked the procedural provision of chapter 14572, Acts of 1929 (Ex. Sess.), General Laws of Florida, in seeking to foreclose a city of Coral Gables tax certificate; the contention of complainant being that section 44 of chapter 13972, supra, is an ambulatory provision of the City Charter of Coral Gables intended to make applicable to city of Coral Gables tax certificates, the remedy of foreclosure of such certificates as provided for by chapter 14572, and that by the force and effect of section 44 of said chapter 13972 the complainant's foreclosure suit is authorized to be maintained, notwithstanding the fact that in State ex rel. Dofnos Corp. v. Lehman, 100 Fla. 1401, 131 So. 333 this court has held that chapter 14572 has no application to municipal tax certificates ex proprio vigore.

Our interpretation of the quoted provisions of section 44 of the Charter of City of Coral Gables, above referred to, is that the construction contended for by complainant, and sustained by the decree of the court below, is the correct one and should prevail on this appeal. If there are provisions of chapter 14572 which are irreconcilably inconsistent with the regulations of the City Charter as argued by the appellant such inconsistencies are expressly taken care of by the language, 'except as herein otherwise provided,' which appears at the end of section 44 of the City Charter thereby preserving the paramount characteristics of the charter provisions where not capable of reconciliation with the general law.

Payment of the taxes according to the description of the property as it appeared described on the tax roll would have been sufficient to discharge the lien of the city for that year's taxes on the described properties, the description not being wholly void for indefiniteness, so the objection of the...