Opinion
March 16, 1955. On Rehearing October 14, 1955.
Appeal from the Circuit Court, Monroe County, Marshall C. Wiseheart, J.
W. Curry Harris, H.H. Taylor and Henry H. Taylor, Jr., Miami, for appellants.
M. Ignatius Lester and J. Lancelot Lester, Key West, and Weldon G. Starry, Tallahassee, for appellees.
In March, 1928, Norberg Thompson acquired title to an island located east of the Boulevard and south of U.S. Biological Station, Key West. It contained two and three-tenths acres when purchased but Thompson bulkheaded and filled in until it contained about five acres. He constructed a dwelling on it and connected it with the mainland by a bridge.
In 1946, this suit was instituted by Thompson, later succeeded by his executors against the City of Key West, to invalidate the city tax assessments for the years 1942 to 1945, inclusive, because of deficiency in the description. The amended complaint filed in 1952 alleges that for the years 1942, 1944 and 1945, said lands were described on the tax rolls of the city as "Part Salt Pond Lots Plat 1 Page 204 2 acres, Book G-2 page 441, Book G-4 page 327". In 1943, said lands were described on the tax rolls as "Book G-2 page 441 Book G-4 page 327." The tax rolls for the years 1946 and 1947 described said lands as follows: "G-2-441, G-4-327 Pt Salt Pond Lots, Plat Book 1 page 204"; and for the years 1948 through 1949 said lands were described on the tax rolls as "KW 2 AC PB 1-204, Pt Salt Pond Lots G2-441 G4-327 G28-165-166". The challenge to the sufficiency of the assessments for uncertainty covers the years 1942 to 1949 inclusive. The assessments for the years 1946 to 1949 inclusive are challenged as being invalid because they were copied from the county tax rolls and were not assessments of the city tax assessor. The assessments for 1942 to 1945 inclusive are charged to be invalid because no warrants were attached to the assessment rolls as required by law and it is contended that the tax certificate for 1949 was invalid because said lands were excluded from the city by Chapter 26442, Acts of 1949. Appropriate answers were filed and at final hearing the chancellor found for the city and dismissed the complaint. The plaintiffs have appealed.
Under the doctrine announced by this court in Porter v. City of Key West, 69 Fla. 357, 68 So. 175, Grissom v. Furman, 22 Fla. 581, and Trust Company of Florida v. City of Tampa, 103 Fla. 628, 138 So. 73, the description or descriptions so detailed were fatally defective for indefiniteness, in that with them and no more a surveyor could not have located the lands. The chancellor had the view, however, that the defective description was cured by the fact that it correctly referred to the plat book and page where a correct and detailed description by metes and bounds was contained. There would be no merit to this view had the description on the tax rolls included no more than said reference but when it also included "part of Salt Pond Lots", an entirely different tract, it was rendered the more confusing.
Despite the showing that appellants' property was improperly described on the tax rolls, in view of Section 192.21, F.S., F.S.A., the pertinent part being as follows: "All owners of property shall be held to know that taxes are due and payable thereon annually, and are hereby charged with the duty of ascertaining the amount of such tax and paying the same before the first day of April of the year following the year in which such taxes were assessed; all provisions of law now existing or which may be hereafter enacted relating to the assessment and collection of revenue (unless otherwise specifically so declared) shall be deemed and held to be directory only, designed for the orderly arrangement of records and procedure of officers in enforcing the revenue laws of the state; and no assessment shall be held invalid unless suit be instituted within sixty days from the time the assessment shall become final, and no sale or conveyance of real or personal property for nonpayment of taxes shall be held invalid except upon proof that the property was not subject to taxation, or that the taxes had been paid prior to the sale, or that the property had been redeemed prior to the execution and delivery of deed * * *", has he presented a case that entitles him to relief? He is not shown to have instituted this suit within sixty days from the time the assessment was final; he has not shown that his property was exempt from taxation; that the taxes on his property were paid prior to the sale, or that his property was redeemed prior to execution and delivery of the certificate. It is not shown that he was ignorant of the assessments on his lands and had no way of ascertaining the amount of said assessments. Section 192.21 originated in Chapter 10040, Acts of 1925, but the quoted part seems to have appeared in the amendment made by Chapter 22079, Acts of 1943. The quoted part also appeared in Chapter 20722, Section 1, Acts of 1941, prior to the assessments involved here. (Chapter 20722 did carry the requirement that no assessment shall be invalid unless suit is brought within thirty days.)
Equities may arise that will prevent strict enforcement of the statute. Whittington v. Davis, 159 Fla. 409, 32 So.2d 158. No such equities are shown in this case. In fact appellants rely on the contention that the description was so fatally defective that it failed to put them on notice of the assessment. In other words, they claim nothing that Section 192.21 does not charge them with notice of. From Hollywood, Inc., v. Clark, 153 Fla. 501, 15 So.2d 175, it appears that if someone else had paid the taxes in question through mistake or under the impression that he owed them, he would have been subrogated to right in the lien for the taxes paid. Because of the fact that appellants have not brought themselves within the exceptions to Section 192.21, F.S. 1953, F.S.A., they have shown no reason in equity to preclude the application of said act. If they presented some equity in their favor or showed that they had been deprived of their property without due process or for other fundamental reasons, the case might be different.
Appellants further contend that the warrants attached to the tax rolls for the years 1942 to 1945 inclusive are invalid because they were not addressed to the tax collector. In our view there was shown to have been substantial compliance with the city charter. At least in the light of Section 192.21, F.S., F.S.A., the certificates were not invalid. Even if there was merit to this contention, it appears to be barred by laches.
Appellants further contend that the assessments on their lands for the years 1946 through 1949 are invalid because based on the county assessments and being so are not bona fide assessments of the city assessor. The record discloses cooperation between the county and city assessors in making up the tax rolls but we will not presume that such cooperation amounted to an unlawful delegation of power or to an unlawful assessment.
It is last contended that since the lands in question were excluded from the city by Chapter 26442, Acts of 1949, no taxes can be imposed on appellants' lands by the city for that year. It is shown that Chapter 26442 became effective October 4, 1949. The taxes had been assessed and the tax roll delivered to the tax collector. The taxes were, under Section 192.04, assessed as of January 1, 1949, they were accordingly within the city for the greater portion of the year and there is no showing of an intent on the part of the legislature to remit the taxes for that year.
The judgment appealed from is therefore affirmed.
Affirmed.
MATHEWS, C.J., ROBERTS, J., and SANDLER, Associate Justice, concur.
On Rehearing
In our main opinion filed March 16, 1955, we held that under § 192.21, F.S.A., appellants were on notice that tax assessments were made annually against their land and that relief against such assessments by the City of Key West could not be granted. On petition for rehearing it is contended by appellants that § 192.21, F.S.A., is not applicable to municipal taxes. State ex rel, Dofnos Corporation v. Lehman, 100 Fla. 1401, 131 So. 333; Lee v. Walter-Keogh, Inc., 105 Fla. 199, 141 So. 131; Henderson v. Boose, 142 Fla. 804, 196 So. 671; Certain Lots, etc. v. Town of Monticello, 1947, 159 Fla. 134, 31 So.2d 905, are relied upon to support this contention.
The pertinent language used in § 192.21, "all taxes imposed pursuant to the constitution and the laws of this state * * *," appears sufficiently broad to apply to all forms of taxation. Henderson v. Boose, 142 Fla. 804, 196 So. 671, 681; Allison Realty Co. v. Graves Inv. Co., 115 Fla. 48, 155 So. 745; City of Sanford v. Dial, 104 Fla. 1, 142 So. 233, 238. This court has held, however, that Chapter 10040, Acts of 1925, and Chapter 14572, Acts of 1929, from which § 192.21 derives, apply only to state and county taxes. State ex rel. Dofnos Corporation v. Lehman, supra; Henderson v. Boose, supra. But see City of Fort Myers v. Heitman, 148 Fla. 432, 4 So.2d 871, 873 , holding that "'all property shall be taxed upon the principles established for State taxation'". Section 5, Article IX of the Constitution, F.S.A., relating to counties and municipalities required the principle established in § 192.21, F.S.A. (then being Sec. 894 of 1936 Perm.Supp. of C.G.L.), "to be applied to municipal taxation in proper cases." In City of Sanford v. Dial, supra [ 104 Fla. 1, 142 So. 238], we held that pursuant to Sec. 894, Compiled General Laws, 1927 (now Sec. 192.21, F.S.A., in so far as applicable to this case), "'all taxes imposed pursuant to the Constitution and laws of this State shall be a first lien superior to all other liens * * * which (lien) shall continue in full force and effect until discharged'", and that the provisions of Sec. 896, C.G.L. 1927 (now in part §§ 192.03 to 192.05, F.S.A.), which enact a lien "superior to all others" upon all real and personal property for taxes assessed against it, placed upon equal footing all valid state, county and municipal taxes as distinguished from special assessments.
This court has also held that a city by its charter may adopt the remedy for foreclosure of tax certificates provided by Chapter 14572, Acts of 1929, and that suit therefor may be maintained notwithstanding the fact that in State ex rel. Dofnos Corp. v. Lehman, supra, we held that Chapter 14572, Acts of 1929, had no application to municipal tax certificates. Southwest Enterprises, Inc., v. Frasse, 113 Fla. 770, 152 So. 175.
The Dofnos case decided in 1930 must now be construed in the light of changes that have since taken place. Material changes have been made since 1925 in the law relating to setting aside an assessment because of irregularities and errors on the part of taxing officials prior to the issuance of the tax deed and in attempts to invalidate a tax deed because of irregularities and errors leading to its acquirement. Thompson, "Tax Titles," 6 Fla.Law Rev. 1, 9 (1953). Whether Chapter 10040, Acts of 1925, or Chapter 14572, Acts of 1929 (or for that matter Chapter 17442, Acts of 1935, Chapter 20722, Acts of 1941, or Chapter 22079, Acts of 1943, from all of which § 192.21 derives), in their entirety apply to municipalities generally is not material in view of the nature of the defects raised by the taxpayer.
We are of the view that the defects raised by the taxpayers are such as do not constitute a bar to the action on behalf of the city to collect the taxes for the years involved. The only defect necessary to explore is whether the irregularity in the description of the real estate involved voids the lien for taxes so assessed.
At the outset it is clear that we are not concerned with a defect in a tax deed or other instrument of conveyance involving errors in description or jurisdiction that call into play other or different rules of law. Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314; Hawkins v. East Coast Land Cattle Co., Fla., 1951, 52 So.2d 800; cf. Trust Co. of Florida v. City of Tampa, 103 Fla. 628, 138 So. 73; see also 6 Fla.Law Rev. 11, 27. Nor is the power to levy a valid tax at issue, since reference to the applicable provisions of the city charter makes the existence of this power perfectly clear.
We are of the opinion that the alleged irregularity in the description of the real estate in question is controlled by Trust Co. of Florida v. City of Tampa, supra; Broadwater v. City of Tampa-Shores, 126 Fla. 116, 170 So. 657; Crawford v. Rehwinkel, 127 Fla. 871, 174 So. 455; City of Fort Myers v. Heitman, supra; Hillsborough County v. Highway Engineering Const. Co., 5 Cir., 1938, 94 F.2d 419. The principle enunciated in these cases is that even though the description on the assessment rolls is defective because incomplete, indefinite or merely irregular, it is no bar to the lien for the unpaid taxes. Such rule is not to be followed where the description is so defective as to amount to a denial of due process when the land is sold for nonpayment of taxes. As stated in 16 McQuillin, Municipal Corporations, Sec. 44.108:
"* * * The purpose of the requirement is, first, to give the necessary information or notice of the tax assessed against the particular parcel to the taxpayer himself; second, that the public may know what property is liable for the tax and is to be sold in case of nonpayment; and third, that the purchaser may obtain an adequate conveyance. Irregularity in the description will not affect the validity of the assessment if the description is sufficiently definite to enable interested persons to determine the property intended, and the owners are not misled. Deficiencies in a description may, in a proper case, be supplied, and, in the absence of objection, it will be presumed on appeal that the assessing board will have corrected an erroneous description of property had the defect been called to its attention."
In the instant case the pleadings and the evidence leave no doubt that the physical property sought to be assessed, whatever may be the correct legal description, was the taxpayer's small island located east of Boulevard and south of the U.S. Biological Station in Key West. There was no mistaken identity of the land in assessing the city taxes. The city taxes have not been paid, nor is the land exempt from taxation under the Constitution or statutes. The record is silent as to payment and assessment of county taxes for the same period although the record reveals the same addressograph plates were used in preparation of the county's tax rolls as were used in the city's tax rolls. The property was assessed to "Thompson [,] Norberg" for all the years in question. In addition, the property is shown by the tax rolls to have been subjected to homestead exemption for each of the years involved. In addition, there is no showing that the valuation of $80,000 ($60,000 for improvements and $20,000 for the land) for the years 1942-45, and $70,000 each year thereafter, is excessive. All the information on the rolls certainly would have put the ordinary taxpayer on notice that it was his "home place" being assessed for taxes, although a surveyor might not be able to locate the property solely from the description.
Illegalities in assessments may not affect the duty to pay a lawful tax. Dewhurst v. City of St. Augustine, 91 Fla. 314, 107 So. 689; City of Fort Myers v. Heitman, supra. Property owners are charged with notice that their property is liable for taxes and this has been held to include city taxes where the power to tax is shown, Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380. In lifting out of context § 192.21, F.S.A., the statement "all owners of property shall be held to know that taxes are due and payable thereon annually, and are hereby charged with the duty * * *," the power to tax being shown, we impose upon the municipal taxpayer no additional duty not otherwise imposed upon him via virtue of Section 5, Article IX of the Florida Constitution in that "all property shall be taxed upon the principles established for State taxation."
In situations of this type a taxpayer seeking equitable relief must offer to do equity. City of Fort Myers v. Heitman, supra, and the cases cited therein. No such showing is made by the appellant. Since 1925 or earlier the legislature has more and more indulged the presumption that every property owner is on notice that his taxes are due annually. This is not an unreasonable presumption. It is a common cliche that "death and taxes are certain." To indulge otherwise would be as ridiculous as it would to assume that one who lives in the country and owns a milk cow was not on notice that she had to be fed and milked twice a day.
The conclusion reached in the original opinion filed March 16, 1955, is adhered to on rehearing granted and the judgment is accordingly affirmed.
DREW, C.J., and ROBERTS, J., and SANDLER, Associate Justice, concur.