West Virginia Hotel Corp. v. W.C. Foster Co.
| Decision Date | 13 March 1931 |
| Citation | 101 Fla. 1147,132 So. 842 |
| Parties | WEST VIRGINIA HOTEL CORPORATION v. W. C. FOSTER CO. et al. |
| Court | Florida Supreme Court |
Suit by the West Virginia Hotel Corporation against the W. C. Foster Company, a corporation and others. From an order entered on a demurrer to the amended bill, complainant appeals, and defendants cross-appeal.
Reversed and cause remanded.
Syllabus by the Court.
As a general rule, the pleader is only required to allege ultimate facts, and is not expected to allege the evidence which he must produce in order to prove such allegation of ultimate facts. But, where fraud is charged, the pleader must allege the essential facts constituting the fraud with a sufficient degree of particularity to enable the court to determine whether on the facts pleaded there was any fraud.
Where a taxpayer delays for two or three years after the assessment before raising any legal objection thereto, and then assails the validity of the tax assessment roll as a whole on the ground that the assessor intentionally and systematically omitted a large amount of taxable intangible property from the roll, he should be required to go farther than a bald allegation in general terms that the assessor omitted a certain number of millions of dollars worth of several classes of such property which were subject to taxation. Such an allegation is too vague and general.
Under section 896, C. G. L., bonds of solvent companies are subject to taxation.
The statutes of this state require that all property, real and personal, and all personal property belonging to residents of the state, not exempted by statute, shall be subject to taxation; and when property, subject to taxation, substantial in value, is deliberately or intentionally omitted from the assessment roll by an assessor with knowledge of its existence and liability, a right of complaint is thereby given against the entire assessment to any taxpayer whose burdens are unduly increased by such omission.
One will not be heard to complain of action that was not injurious to him, and the prima facie correctness of an assessment roll made by the proper officer is not affirmatively overcome by the mere allegation that a certain class or classes of property was intentionally omitted from taxation, for non constat property of such class belonging to the complaining tax payer may also have been omitted from taxation, in the absence of any allegation to the contrary.
In an attack on the validity of an assessment roll, the complainant, who alleges that he is the owner of improved property on which the improvements were worth several fold the value of the land on which they stood, does not, by allegations of a method of assessing the value of improvements at one-half their value while land was assessed at its full value, show any injury to himself. Nor does it appear from the allegations in this case that such alleged method of assessment affected complainant otherwise than other taxpayers similarly situated in proportion to the value of the improvements, or placed upon complainant any other or greater proportionate burden than upon others, and hence affords no ground for adjudging the assessment to be void.
Where the allegations in a bill show that the city tax assessor arbitrarily assessed the personal property of complainant at twice its actual value, without viewing the property, and without any evidence upon which he could arrive at a fair and just estimate of its value, such valuation is so obviously and flagrantly excessive as to amount in law to a fraud, and such allegation imputed to the tax assessor an intention to arbitrarily discriminate against the complaining taxpayer. This allegation does not affect the validity of the assessment roll as a whole, but only goes to the validity of the assessment against the particular property.
Under the circumstances set forth in the preceding headnote, the taxpayer was not required to first seek adjustment before the administrative body provided for the equalization of assessments before coming into a court of equity for appropriate relief, as would be required if the overvaluation was the result of mere inadvertence or bona fide mistake of judgment on the part of the tax assessor. Nor do sections 1 and 16 of chapter 14572, Laws of 1929, Ex. Sess., properly construed and constitutionally applied, deny appropriate relief in equity, in such a case.
While the courts cannot assess or levy taxes, they can, in proper cases, under section 1038, C. G. L., strike down the illegal portion of a tax and leave the remainder intact.
Where a tax assessment is wholly illegal and void, a complaining taxpayer attacking such an assessment will not be required as a condition precedent to maintenance of suit, to pay or tender into court any portion of such tax; but, where the alleged illegality consists of an overvaluation and excessive assessment of complainant's property as compared with other property of the same class, and the bill seeks the cancellation of the tax assessment on the ground of such overvaluation, a court of equity may require the complainant to pay into the registry of the court a sum sufficient to cover such proportion of the assessment which the allegations of the bill show could have been legally assessed against complainant's property. Appeal from Circuit Court, Palm Beach County C. E. Chillingworth, judge.
H. J. Quincey and L. S. Gaulden, both of West Palm Beach, for appellant.
Joe Hatfield and J. Mark Wilcox, both of West Palm Beach, for appellees.
The complainant, appellant here, filed its bill to enjoin the issuance of a tax deed applied for by the W. C. Foster Company as the holder of a tax sale certificate of the city of West Palm Beach against appellant's property. The certificate was issued in 1927 upon the sale of the property for nonpayment of city taxes for the year 1926. Complainant's property consisted of a portion of three lots in the city of West Palm Beach, upon which it had constructed a 72-room hotel. It is also alleged that the property was sold for nonpayment of the city taxes for the year 1927, and that at said sale one D. Lee, agent of the Foster Company, had become the purchaser, and was again sold for nonpayment of the taxes for the year 1928, one G. Fillo becoming the purchaser; that the Foster Company, or some agent thereof, had paid the city tax collector said taxes, and had purchased or redeemed the tax sale certificates which had been issued to D. Lee and G. Fillo, and had made application for the issuance of a tax deed under the first named tax sale certificate issued in 1927 for the failure to pay the said taxes for the fiscal year beginning in 1926, and that the tax collector had started publication of notice as required by law.
The bill was filed in September, 1929, and attacks the validity of the assessment rolls for each of the years 1926 to 1929 respectively.
The theory of the bill is that the entire assessment rolls, for each of the tax years named, were illegal, null, and void. It prays that the issuance of the tax deed be enjoined, and that the certificates, as well as the assessment for 1929, be canceled as clouds on the title.
The city assessment rolls for the years 1926 and 1927 are attacked upon substantially the same grounds. Some of those grounds are omitted from the allegations attacking the assessments for 1928 and 1929. The attack on the assessment roll for 1929 is, however, practically abandoned in the brief, counsel for appellant stating that they had been erroneously informed by the deputy city clerk that at the time of applying for tax deed the Foster Company had paid the 1929 taxes, and had so alleged in the bill, but that this was an error; that the taxes for 1929 were not due until November 1, 1929, whereas the bill was filed September 27, 1929. In passing upon the correctness of the chancellor's rulings, we will, of course, consider the allegations of the bill just as they appeared when submitted to him.
A temporary injunction was granted by the court on the day the bill was filed. Subsequently a demurrer to the bill was filed by the defendants. By a consent order, the complainant was permitted to file an amended bill, the demurrer to the original bill to stand as the demurrer to the amended bill.
The cause coming on to be heard upon the demurrer, affidavits, and motion to dissolve the temporary injunction and dismiss the bill, the chancellor on April 7, 1930, made an order in which he stated that he considered that the bill had equity in so far as it related to the tax on personal property; the remainder of the order reading as follows:
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