Opinion
February 3, 1950. Rehearing Denied February 21, 1950.
Petition from the Circuit Court for Pinellas County, John Dickinson, J.
Tillman McEwen, Henry C. Tillman, James M. McEwen, Ralph A. Marsicano, Tampa, and Pleus, Edwards Rush, Orlando, for petitioners.
Alfred P. Marshall, Clearwater, and Howard P. Rives, for respondents.
The respondents here, who were plaintiffs in the Court below, filed their Bill of Complaint in the Circuit Court of Pinellas County, Florida, on the 23rd day of February, A.D. 1949, making the Town of Largo, a municipal corporation, and A. Homer Jennings, defendants, and these defendants are now the petitioners to this Court for a Writ of Certiorari. The bill of complaint alleged the ownership in the respondents of certain lands in Pinellas County, Florida, which lay without the Town of Largo as it existed and as it now exists, but within the bounds of the City of Largo which was created by the 1925 Florida Legislature in Chapter 10760 and Chapter 10761, and which City of Largo was made the subject of a quo warranto proceeding in the case of State ex rel. Davis v. City of Largo, which case is cited in 110 Fla. 21, 149 So. 420, and in which this Court held that the Legislative Act creating the City of Largo was unconstitutional and entered a judgment of ouster.
The Bill of Complaint then sets up the fact that on the lands described in the Bill of Complaint as belonging to the respondents, the Town of Largo is seeking to assess, levy and collect taxes for the purpose of paying bonds which were issued by the City of Largo between 1925 and 1933. The Bill of Complaint further alleges that there should be no tax for this purpose assessed against the improvements put upon said lands because said improvements were put there after the judgment of ouster in 1933, and that under the laws of Florida it is illegal to assess any improvements made after that date, and that the only property which can be assessed legally is the value of the land itself as of the year 1933; that respondents' lands were wild and unimproved on the date of the ouster judgment.
The Bill of Complaint alleges that A. Homer Jennings at the tax sale of 1948 bought a Town of Largo tax certificate upon the property so assessed, and the prayer of the Bill of Complaint is for an injunction against the Town of Largo from assessing or attempting to levy and collect a tax on any of the property of the plaintiffs except the naked property of the plaintiffs and to have tax certificate of Mr. Jennings declared null and void and ordered cancelled.
The Bill of Complaint seeks not only to have the assessed valuation fixed as of the 1933 level which is reflected in the 1946 city valuation, but also to have the annual tax millage rate of 34 mills remain constant. The Bill also seeks to have the court require the City to accept the $326.40 tendered as payment of 1946-1947-1948 taxes, which sum of money represents the amount of taxes which would be due for those years if respondents' position in this suit should be found to be well taken.
On the 2nd day of April, the defendant Town of Largo, filed its Motion to Dismiss the Bill of Complaint and on the same date the defendant A. Homer Jennings, filed his Motion to Dismiss the Bill of Complaint. Both Motions were based upon the grounds that the Bill of Complaint failed to state a cause of action for equitable relief, failed to show any invalidity in the tax assessment complained of, failed to show any valid reason why the buildings and improvements upon the plaintiffs' property should not be assessed for taxes, and failed to state a case for a declaratory decree under Chapter 87, Florida Statutes 1941, F.S.A.
After the matter was argued before the Chancellor he entered his Order overruling and denying both motions to dismiss. Both of the defendants below, who are the petitioners here, join in a Petition, for Certiorari to this Court and it is upon that Petition that this matter is now being heard.
The Chancellor apparently predicated his ruling upon the contention made by counsel for the respondents herein that the "yard-stick" which was set forth in the case of Richmond v. Town of Largo, 155 Fla. 226, 19 So.2d 791, should be applied in the instant case. That "yard-stick" was set forth for use in determining which lands without the Town of Largo but included within the City of Largo should be subject to taxation for debt service.
There was never a contention that none of the lands (which were annexed to the Town of Largo at the time of the incorporation of the City of Largo) were susceptible to municipal benefits.
The judgment of ouster in the case of State ex rel. Davis, v. City of Largo, 110 Fla. 21, 149 So. 420, was predicated upon the fact that the annexed territory consisted "chiefly of unbenefitted outlying agricultural lands or vacant, wild, and unimproved lands." This Court in subsequent cases definitely decided that some of the annexed lands were either benefitted or were reasonably susceptible to benefits. Town of Largo v. Richmond, 157 Fla. 837, 26 So.2d 900; Allen v. Town of Largo, Fla., 39 So.2d 549.
In the case of Richmond v. Town of Largo, supra, this Court said [ 155 Fla. 226, 19 So.2d 795]: "In such proceedings brought by a property owner claiming relief we assume, but do not decide, that as against him the bond holder would be in equity entitled to a tax levy against those properties outside the town but within the city as were benefitted or were reasonably susceptible to benefits by the inclusion of the same within the city limits and by the expansion program for which the bond funds were to be expended. In determining what lands would be included in this class the trial court would doubtless be guided by conditions existing during the period of the incorporation of the City of Largo and the expenditure of the bond proceeds rather than by conditions shown to exist at a prior or subsequent time. And if it were found on such proceedings that lands without the town but within the City of Largo were benefitted or were reasonably susceptible to benefits as measured by that yardstick, the court would undoubtedly deny parties invoking the remedy the relief sought and would require such lands to be assessed upon a just and uniform basis for their proportionate share of the debt, in conformance with constitutional principles." (Italics supplied.)
There is a vast difference between determining what lands should be subject to taxation for servicing the bonds and in deciding whether the valuation of land for tax purposes should be fixed as of the 1933 level and whether the existing tax millage rate should remain constant. This is the first time we have been faced with the contentions (1) that the valuation of the land for the purpose of taxation should remain as of the 1933 level; (2) that the present tax millage rate should remain constant and (3) that property which was unimproved at that time but has since been improved should have the improvements thereon ignored and excluded from taxation.
We said in the case of Richmond v. Town of Largo, supra, that lands which "were benefitted or were reasonably susceptible to benefits by the inclusion of the same within the city limits and by the expansion program for which the bond funds were to be expended" might in equity be "assessed upon a just and uniform basis for their proportionate share of the debt." By this we meant, and now hold, that such lands should be assessed for taxes in accordance with the statutory law and constitutional provisions of this State upon the subject of taxation and in the same manner that all other real property liable to such tax is taxed. This means that the land and the improvements (see Sec. 192.02, F.S. 1941, F.S.A.) thereon should be assessed upon a fair and uniform basis. No reason exists for the application of any different rule of taxation than that which is prescribed in our law.
Every person who purchased land (which was within the City of Largo) subsequent to the judgment of ouster in the case of State ex rel. Davis v. City of Largo, supra, made his purchase with notice that such land was subject to taxation for debt service unless such land was not benefitted or reasonably susceptible to benefits by the inclusion of it within the city limits of the City of Largo. Each one likewise was presumed to know the procedure prescribed by law for taxation of real property and the improvements thereon.
Moreover, with reference to the prayer of the Bill of Complaint that the court determine that the annual tax millage rate of 34 mills remain constant, it is deemed appropriate to observe that the Circuit Court of the Sixth Judicial Circuit should not tie its hands nor attempt to control the action of any other court of competent jurisdiction. It is our understanding that the rate of 34 mills was established in mandamus actions and a court having jurisdiction may change such millage at any time it may be shown that circumstances and conditions warrant such alteration. Until some action may be taken to require a change in the millage rate, it will, in all probability, remain as fixed by the Federal Court, at least for the period of time prescribed in its orders.
It is not suggested that the lands of respondents are not lands which "were benefitted or were reasonably susceptible to benefits". Indeed, respondents show by their Bill of Complaint that the lands involved herein were decreed by the Circuit Court of the Sixth Judicial Circuit of the State of Florida to be lands which were "reasonably susceptible to benefits by the inclusion in the city limits and the expansion program for which both funds were to be and were expended."
It is our conclusion that the lands of respondents should be taxed for debt service in the usual and customary manner provided by law.
The Petition for Writ of Certiorari is granted and the Order denying the Motions to Dismiss should be and it is hereby quashed.
TERRELL, Acting Chief Justice, and CHAPMAN and SEBRING, JJ., concur.