Wade v. Murrhee

• Decision Date: 05 April 1918
• Citation: 75 Fla. 494,78 So. 536
• Parties: WADE v. MURRHEE, Tax Collector.
• Court: Florida Supreme Court

78 So. 536

75 Fla. 494

WADE v. MURRHEE, Tax Collector.

Florida Supreme Court

April 5, 1918

Appeal from Circuit Court, Clay County; George Couper Gibbs, Judge.

Suit for injunction by L. E. Wade against A. J. Murrhee, as Tax Collector of Clay County. Temporary injunctional order modified, and injunction made perpetual on complainant's payment of a certain amount with interest, and he appeals. Decree reversed, with direction to enter a decree for defendant.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

The tax assessor of a county may exercise a wide discretion in the valuation of property for the purpose of taxation, and the courts will not, as a general rule, in the absence of a clear and positive showing of fraud or illegality, or the abuse of discretion rendering an assessment authorized by law so arbitrary and discriminatory as to amount to a fraud upon the taxpayer or to a denial of the equal protection of the law undertake to control such officer in the exercise of such discretion.

In assessing property under the provisions of section 22 of chapter 5596, Acts of 1907, Laws of Florida (Comp. Laws 1914 s 524), a tax assessor is not bound by a valuation previously placed upon the property assessed for a year in which it escaped taxation because of some irregularity in the assessment, but may assess such property just as if it had not previously been assessed for such year.

Section 22 of chapter 5596, Acts of 1907, Laws of Florida (Comp. Laws 1914, s 524), contemplates that the property assessed under it shall be taxed for the year or years in which it escaped taxation just as other property of like character similarly situated was taxed for such year or years, and the millage or rate for the year for which the assessment was made, and not for the year in which it was made, should be used in ascertaining the amount of the tax.

A part of a tax, not so blended as to be inseparably connected with the remainder, may be unlawful, while the remainder is held to be lawful.

A state may by appropriate legislation and action thereunder reach backward and collect taxes upon taxable property which has escaped taxation for a given year or years through the mistake or error of the assessor or the failure or neglect of the owner to return it for taxation.

Delinquent taxes do not bear interest unless it is expressly so provided by statute.

COUNSEL L. E. Wade, of Orange Park, for appellant.

G. W Geiger, of Green Cove Springs, for appellee.

OPINION

WEST J.

By this suit the appellant, who will hereafter for convenience be referred to herein as the 'complainant,' seeks to enjoin the defendant, who is the tax collector of Clay county, Fla., from selling certain lands in said county belonging to the complainant which were advertised for sale because of the failure of the complainant to pay the taxes levied and assessed for the year 1911 upon said property.

It appears that the assessment was made in the year 1913 under the authority of section 22 of chapter 5596, Acts of 1907 (Comp. Laws 1914, § 524); the property advertised having escaped taxation for the year 1911 as a result of a suit brought by the complainant against the then tax collector of said county, in which the assessment made against said property was attacked upon various grounds not necessary to be mentioned here.

It is alleged by complainant that the assessment challenged in this suit is invalid and that the sale of the property should therefore be enjoined; (1) Because of inaccuracy in the description of the property; (2) because the value of the property was fixed at $1,500, whereas, when the assessment was originally made for the year 1911, the property was valued at $1,000; (3) because said tax includes millage for a special road and bridge district which was not in existence until the month of December, 1911; (4) because the millage for 1913, which was greater than the millage for 1911, was used in making the calculation necessary to ascertain the amount of the tax; and (5) because the property is traversed by a track of a railroad company, and the area occupied by the right of way of the railroad company's track is included in the assessment.

The bill was not demurred to, but answer was filed by the defendant in which he avers, in reference to the description complained of:

'That the complainant ought not to complain about the description of his said property as assessed on the tax roll of 1913, for that this defendant is informed and verily believes, and so alleges, that the complainant has never made a valid return of his property to the assessor of taxes as required by law. That, the property of the complainant being described by a private survey, it was very difficult for the assessor to obtain a proper description of said property. That the complainant filed a bill in equity in the year 1912 to enjoin the sale of his said property for taxes for the year 1911, and that in said bill of complaint set up what he termed a correct description of his said property. That this defendant is informed and verily believes and alleges that the assessor of taxes of said county for the year 1912 assessed the complainant's property as complained of, from the description of the complainant's property as shown by his sworn bill of complaint filed in this court, and that the assessor of taxes for the year 1913 called on the complainant for a return of his property for the purpose of taxation, and that the complainant told the assessor to assess his property for 1913 from the description as used on the tax roll of 1912. That said verbal return is the only return made by the complainant of his said property for the year 1913. That the complainant in his said bill of complaint wherein he set up a description of his said property did not except from said description the five and a fraction acres included in the right of way of the Atlantic Coast Line Railroad, but described said property by metes and bounds without any exceptions whatever.

'That the description of complainant's property in his said bill complained of is substantially the same description used by the complainant in describing his said property in the former bill of complaint, with the exception of the erroneous leaving off of the figures section 7, 8, and 17, which said omission does not affect the metes and bounds description of complainant's property.'

The defendant admitted that the property was originally assessed for the year 1911 at $1,000, but he says that he is not bound by such valuation, and that it is his duty to assess such property at its true cash value in the year in which it escaped taxation. He also admitted that the special road and bridge district referred to in the bill was not in existence on the 1st day of January, 1911, and that, in making his calculation for the purpose of ascertaining the amount of the tax due on the property, the millage for the year 1913, the year in which the assessment was made, was used.

The defendant avers that the complainant made no return of his property to the tax assessor of the county for taxation, and that he failed to appear at the meetings of the board of county commissioners of the county at meetings held by them in July and August for the purposes of hearing complaints of property owners and reviewing and equalizing the assessment of taxable property of the county.

Testimony was taken, and upon final hearing a decree was rendered by the circuit judge holding that the complainant should forthwith pay to the defendant the amount of $39 with interest at the legal rate from the 28th day of July, 1914, to the date of the decree, which the court found to be the taxes due upon the land of the complainant so assessed for the year 1911.

The court decreed further that such tax should be a lien in favor of the state upon the land of complainant, described as follows:

'Commencing on the shore of Doctor's lake at a post 421 feet northeasterly from corner or intersection of sections 41 and 42 of shore of Doctor's lake, thence north 42 degrees W. 1,900 feet to right of way of A. C. L. R. R., thence across said right of way 100 feet, thence S. Wly., along said R. R., and around curve to where said R. R. intersects N. line of Sec. 42 thence N. corner Sec. 42 along said line S. 73 degrees W. 1,103 ft. to corner, thence N. 9 degrees 30 minutes W. 2567 ft. and four inches to corner, thence N. 51 degrees E. 1,112 ft. to corner, thence S. 58 degrees E. 3,696 ft. to corner, thence S. 29 degrees E. 726 ft. to shore of Doctor's lake, thence along said shore to place of beginning, less one acre, in sections 18 and 41, Tp. 4, south of range 26 east, containing 175 acres. Clay county, Florida, for the amount of unpaid taxes and interest as noted in paragraph first just preceding.'

The temporary injunctional order previously granted was modified and the injunction was made perpetual as to the amount of the tax claimed in excess of $39 with interest, and it was ordered that the costs in said cause be paid, one-half by the complainant and one-half by the defendant.

The averments of the answer to the effect that the complainant has not made a valid return of his property and that the description of the property as it appeared upon the assessment roll and in the notice of sale was substantially the same as the description of the property in the assessment for the year 1912 and that such description was taken from a bill of complaint filed by the complainant for the purpose of enjoining the sale of the property for the tax due for the year 1911, was amply proven; and it was likewise proven that the complainant did not appear at the meetings of the board of county commissioners of the county at the...