State ex rel. Victor Chemical Works v. Gay

• Decision Date: 16 July 1954
• Citation: 46 A.L.R.2d 1340,74 So.2d 560
• Parties: STATE ex rel. VICTOR CHEMICAL WORKS v. GAY, Comptroller.
• Court: Florida Supreme Court

Page 560

74 So.2d 560

46 A.L.R.2d 1340

STATE ex rel. VICTOR CHEMICAL WORKS v. GAY, Comptroller.

Supreme Court of Florida, en Banc.

July 16, 1954.

Rehearing Denied Sept. 28, 1954.

John M. Allison, George W. Ericksen & Macfarlane, Ferguson, Allison & Kelly, Tampa, for petitioner.

Richard W. Ervin, Atty. Gen., and Fred M. Burns, Asst. Atty. Gen., for respondent.

John T. Wigginton and Caldwell, Parker, Foster & Wigginton, Tallahassee, amici curiae.

MATHEWS, Justice.

This is a case of original jurisdiction. Alternative writ of mandamus issued. A motion to quash the alternative writ was denied and a return to the alternative writ was filed. Thereafter, a motion for the issuance of the peremptory writ notwithstanding the return was filed. A re-argument, pursuant to a Petition Granted, was had.

From the pleadings in this cause it appears that the relator paid the use tax imposed by Chapter 26319, Laws of Florida, Acts of 1949, Extraordinary Session. The taxes paid by the relator were on various dates between December 19, 1949, and May 17, 1951. Claim for refund was filed with the Comptroller on July 25, 1953.

In the case of Thompson v. Intercounty Tel. & Tel. Co., Fla., 62 So.2d 16, we held that the tax imposed by the act in question was not due because it was invalid by reason of a defective title to the act. The defect in the title has now been cured by the enactment of Chapter 26484, Laws of Florida, Acts of 1951. The taxes paid by the relator and in question in this suit amounted to $5,261.68 and covered the period of time from November 1, 1949, and April 25, 1951. F.S. Section 215.26, F.S.A. is as follows:

'Repayment of funds paid into state treasury through error, etc.

'(1) The comptroller of the State of Florida may refund to the person who paid same, or his heirs, personal representatives or assigns, any moneys paid into the state treasury which constitutes:

'(a) An overpayment of any tax, license or account due;

'(b) A payment where no tax, license or account is due; and

'(c) Any payment made into the state treasury in error;

and if any such payment has been credited to an appropriation, such appropriation shall at the time of making any such refund, be charged therewith. There are appropriated from the proper respective funds from time to time such sums as may be necessary for such refunds.

'(2) Application for refunds as provided by this section shall be filed with the comptroller within one year after the right to such refund shall have accrued else such right shall be barred and such application shall be on a form to be prescribed by the comptroller and shall be sworn to and supplemented with such additional proof as is necessary to establish such claim; provided, that if the right to refund shall have accrued prior to June 10, 1943, then such claimant shall have the period of one year from said date to file such claim; provided, such claim is not otherwise barred under the laws of this state.'

The relator insists that his right to a refund did not accrue until the final determination of the suit in the case of Thompson v. Intercounty Tel. & Tel. Co., supra, in which the relator was not a party. The respondent claims that the right to refund accrued at the time of the payment of such tax, irrespective of the time of the final determination of the legality of the tax in some other suit in which the relator was not a party.

It becomes important in this case to determine when the right to a refund 'accrued'. In Orlando Orange Groves Co. v. Hale, 119 Fla. 159, 161 So. 284, the Court held that the word 'accrue' meant to come into existence as an enforceable claim; to vest a right; as a cause of action has accrued when the right to sue has become vested.

In the case of Berger v. Jackson, 156 Fla. 251, 23 So.2d 265, the Court held that an action accrued when an action could be instituted thereon and there was some person capable of being sued.

In the case of Commonwealth v. Sammons, 180 Ky. 403, 202 S.W. 885, the Kentucky Court held that a cause of action accrues when the party has the right and capacity to sue and is not suspended until he ascertains that he has a cause of action.

F.S. Section 215.26, F.S.A., is not, strictly speaking, a statute of limitations but is more in the nature of a statute of nonclaim. The application for refund is required to be made within one year after the right to such refund shall have accrued and if no application has been made, the right to any refund shall be barred.

In dealing with statutes such as that involved in this case it is essential that we bear in mind that unless there is some statute which authorizes a refund or the filing of a claim for refund, money cannot be refunded or recovered once it has been paid although levied under the authority of an unconstitutional statute. 51 Am.Jur., Taxation, Sec. 1167. 'The recovery of illegally exacted taxes is solely a matter of governmental grace. In the absence of an authoritative statute, taxes voluntarily, although erroneously, paid cannot be voluntarily refunded, although there may be justice in the claim. * * * Sometimes conditions are annexed to the right to a refund which must be complied with, such as the making of the claim within a specified time. It seems that defects in the form of sufficiency of the claim may be waived, but the statutory requirement that the claim be filed in the prescribed time may not be waived.' 51 Am.Jur., Taxation, Sec. 1179.

In short it is the universal rule that a statute of non-claim runs from the time the taxes are paid and is not postponed until the legality of the tax has been judicially determined. 84 C.J.S., Taxation, § 639(c).

The Florida Probate Law and the interpretations of this Court with reference thereto are to some extent analogous to the question presented in this case. F.S. Section 733.16, F.S.A., provides that any claim or demand not filed within eight months from the time of the first publication of notice to creditors shall be void and that no cause of action shall survive the death of the person unless such is filed in the manner and time fixed by the statute.

In the case of Bedenbaugh v. Lawrence, 141 Fla. 341, 193 So. 74, this Court held that as a matter of public policy in this state the estates of decedents should be speedily and finally determined. The same reasoning applies with reference to taxes. A refund is a matter of grace and if the statute of non-claim is not complied with, the statute becomes an effective bar in law and in equity.

In the case of In re Woods' Estate, 133 Fla. 730, 183 So. 10, 12, 117 A.L.R. 1202, the decedent had executed a promissory note payable on or before thirty days after date. The note was dated January 6, 1926. The maker died on October 10, 1934. The first publication of notice to creditors was on November 5, 1934. On October 15, 1935, the payee of the note filed his claim in the County Judge's Court based upon the promissory note. On November 8, 1935, an order was entered by the County Judge's Court striking from the files and records the claim so filed. The claimant appealed to the Circuit Court where the order was affirmed, and from that order of affirmance an appeal was taken to this Court. On November 5, 1935, suit was filed in the Circuit Court on the promissory note. The administratrix pleaded the eight months statute of non-claim to which a demurrer was filed. The Circuit Judge overruled the demurrer. The issues raised in the two suits were the same; to-wit, the validity of the statute of non-claim. In discussing the issues involved in that case this Court said:

'* * * There is a wide distinction between general statutes of limitation and the so-called short, special, nonclaim or administrative statute of limitations under which claims against estates of deceased persons must be presented, and in some instances prosecuted, within a given time after the administration of an estate begins and notice is published for the benefit of creditors. Not only is the purpose of these nonclaim statutes different, but the event which starts the period to running and makes them effective is different. General statutes of limitation begin to run when the cause of action arises, but nonclaim statutes do not become effective except as to claims against decedent's estates and only after an administrator has been appointed, and letters of administration issued and notice given to the creditors as required by the statute. Our court has recognized a distinction between these two classes of statutes in the case of Bradford v. Shine, 13 Fla. 393, 7 Am.Rep. 239. 'In the case of Brooks v. Federal Land Bank of Columbia, 106 Fla. 412, 143 So. 749, at page 753, Justice Ellis, speaking for the Court, rightly said:

"A statute of nonclaim while partaking of the nature of a statute of limitations is not wholly such. It constitutes part of the procedure of the court, the orderly, expeditious, and exact settlement of the estates of decedents, and constitutes part of the procedure which courts must observe in the settlement of estates of deceased persons, and, where no exemption from the provisions of a statute exist, the court is powerless to create one. If such were not the case, the settlement of an estate might be deferred indefinitely and heirs and legatees, the rightful owners of the property of the estate, or beneficiaries of the will of the decedent, kept out of the enjoyment of their possessions and deprived of the benefits secured to them by the laws of the state for such unreasonable time as to practically deprive them of their property.'

* * *

* * *

'* * * the Court is powerless to change the words and clear meaning of the nonclaim statute, which provides that 'any such claim or demand not so filed within eight months from the time of the first publication of the notice to creditors shall be void.' As was said in the case of Brooks v. Federal Land Bank of Columbia, supra, 'where no exception from the provisions...