Opinion
June 19, 1951. Rehearing Denied August 21, 1951.
Raymond R. Richardson, West Palm Beach, for relator.
Richard W. Ervin, Atty. Gen., Rufus M. Yent and Fred M. Burns, Asst. Attys. Gen., for respondent.
Keen, O'Kelley Spitz, J. Velma Keen and Chas. H. Spitz, Tallahassee, amici curiae.
This is an original proceedings in mandamus to compel payment of 1949 bond and maintenance taxes and we have before us the alternative writ, amended motion to quash the alternative writ and dismiss the cause, and also amended return to the alternative writ.
The case, as presented by the relator and as made by the alternative writ, is as follows:
South Florida Conservancy District was created by Chapter 7975, Sp.Acts of 1919, to drain and reclaim lands within its boundaries. Subsequent to the creation of the District by the Act of the Legislature bonds were issued in excess of $1,000,000 which bonds, through refunding operations, have now been reduced to $480,000. By the Act creating the District and by subsequent amendatory Acts the Legislature levied a yearly bond tax and maintenance tax. The last Act, Chapter 25434, Acts of 1949, levied a yearly bond tax of $1.25 per acre and a maintenance tax not to exceed $4 per acre for the years 1949 and 1950. Pursuant to the said Legislative Act the Board of Supervisors of the District levied and assessed against all the lands in the District for the year 1949 a bond tax of $1.25 per acre and a maintenance tax of $4 per acre.
The Legislature in 1921 provided for and created an Agricultural Experiment Station on such lands of the State of Florida in the Everglades as the trustees of the Internal Improvement Fund might select, and required the trustees to set apart lands for the Station and to "provide and construct all canals, drains and other reclamation works that may be required to completely protect and secure the said lands from overflow." Laws of 1921, Chapter 8442, F.S.A. § 241.28 et seq. Pursuant to the said Act the trustees of the Internal Improvement Fund directed that the Experiment Station be established upon Section 3 which section was then owned by the trustees and was located within the boundary of the South Florida Conservancy District. The Acts of the Legislature then relating to the South Florida Conservancy District provided, and have ever since provided, that the lands within the District held by the said trustees, or the State Board of Education or any other State agency, should be subject to such District taxes, and authorized and directed the trustees to pay such taxes out of any monies in their possession. Section 5(b), Chapter 20477, Acts of 1941, provides as follows: "Section 5 * * * (b). That the lands in said District used or held by, for or in connection with the agricultural experiment station in the Everglades or any branch thereof shall be subject to the taxes levied by or pursuant to the provisions of this Act, notwithstanding whether the title to or ownership of such lands shall be vested in said Trustees, the State Board of Education or any other State Agency, and the Trustees of the Internal Improvement Fund are authorized and directed to pay out of any monies in their hands derived from the sale of lands, or otherwise, all South Florida Conservancy District taxes heretofore levied and assessed, or which may hereafter be levied and assessed, upon such lands."
In the year 1931 the trustees of the Internal Improvement Fund conveyed said Section 3 to the State Board of Education. Shortly after such conveyance the lands comprising the Station were added to by conveyance direct to the State Board of Education from one Nellie D. Cannon of Section 10, immediately south of said Section 3. Said Section 10 being also within the South Florida Conservancy District.
By an earlier mandamus proceedings the respondents were required to pay the District taxes for the years 1935 through 1946. The taxes were voluntarily paid for the years 1947 and 1948. But in 1949, the Legislature enacted Chapter 25186, F.S.A. § 229.241, Section 4 of which is as follows: "Section 4. In pursuance of the provisions of the Constitution of this state that `The principal of the state school fund shall remain sacred and inviolate', the land comprising part of said fund shall not be subject to taxes of any kind whatsoever, but shall enjoy constitutional immunity therefrom, nor shall taxes of any kind be imposed thereon; nor, since not subject to tax, shall the state or any state agency be liable for taxes or the equivalent thereof sought to be imposed upon said land. All outstanding tax sale certificates against land of the state school fund are hereby cancelled." Upon the enactment of the foregoing Section the Respondents refused to pay the District taxes due for the year 1949.
It is worthy of note that the last quoted section concerns itself with "land" comprising the State School Fund and with "taxes" imposed thereon. Section 4, Article XII, of the State Constitution, F.S.A., fully sets forth a description of what shall constitute The State School Fund. The section reads: "Section 4. The State School Fund, the interest of which shall be exclusively applied to the support and maintenance of public free schools, shall be derived from the following sources. The proceeds of all lands that have been or may hereafter be granted to the State by the United States for public school purposes. Donations to the State when the purpose is not specified. Appropriations by the State. The proceeds of escheated property or forfeitures. Twenty five per cent. of the sales of public lands which are now or may hereafter be owned by the State."
It seems clear that the quoted section of the Constitution refers not to land but the proceeds thereof and while the land may be property of the State Board of Education it is not a part of the State School Fund and, therefore, not covered by the Constitutional provision that "the principal of the State School Fund shall remain sacred and inviolate." Section 5, Article XII, State Constitution. Furthermore, while the word "Fund" may, in some instances, be construed to include real estate, the inclusion of land will not ordinarily be inferred, for it is a word usually thought of as meaning personalty, something to be invested and reinvested. The Constitution itself speaks of "the interest" from the Fund.
We next come to the contention of the respondents that an attempt to impose these District taxes against lands used by the Experiment Station violates the provision of the State Constitution exempting educational property from taxation. Section 16, Article XVI. At the same time, by their answer (paragraph 9) the respondents say they "admit that the special assessments were and are not taxes for the general upkeep of government but are in the nature of special assessments for benefits to the lands on which levied." This Court has on a number of occasions distinguished between taxes for the general use of government and special assessments for benefits. The most recent case is that of State ex rel. Board of Supervisors of South Florida Conservancy District v. Caldwell, Governor, 160 Fla. 355, 35 So.2d 642, 644, wherein we quoted the following applicable statute: "That all taxes levied hereunder are hereby declared, and shall be considered and construed, to be special drainage assessments for benefits to said lands, and are to be used for the purposes herein specified and authorized, * * *." Section 9, c. 17258, page 1102, Acts of 1935. We then said: "It is important to keep in mind the distinction between special assessments and taxes for the upkeep of government. `Such assessment or charges, are, as stated in the acts, to provide means to accomplish the purposes set out in these acts, and is a peculiar species of taxation distinct from the general burden imposed for state, county, and municipal purposes, in that it is a local or special charge placed upon the land, situated in the drainage district to pay for public improvements proposed to be made therein, on the theory that such property thereby derives a special benefit, and therefore such charges constitute a special assessment.' Lainhart v. Catts, 73 Fla. 735, 75 So. 47, 52. * * * `The fact that state lands may be assessed for drainage and that the lien for drainage taxes may be made of equal dignity with the lien for State and County taxes is too well settled to require discussion,' and `The lands of the State were included in the tax program on the theory that they should bear their just portion of the burden of reclamation.' State v. Everglades Drainage District, 155 Fla. 403, 20 So.2d 397, 398; State v. Napoleon B. Broward Drainage District, 155 Fla. 407, 20 So.2d 399; State v. Lake Worth Drainage District, 155 Fla. 408, 20 So.2d 399."
We there held, and now reaffirm, that "A state clearly has the right, by positive legislative enactment, to declare that its property may be assessed for local improvements, and a constitutional exemption of the property of the state from `taxation' does not prevent such a grant." As pointed out, supra, the Legislature gave specific authority to the District to levy the bond and maintenance tax and directed that the Trustees of the Internal Improvement Fund pay such tax. The subsequent 1949 Act, Chapter 25186, providing that no "taxes" shall be levied on any "land" comprising part of the State School Fund is ineffectual to overcome the previous grant of authority to levy the special assessments for improvements.
The respondents further question the right of the Legislature to direct that the trustees pay taxes on lands owned by the State Board of Education. We held in the case of State, etc., v. Caldwell, Governor, supra, that the disposition of the Internal Improvement Fund is entirely within the discretion of the Legislature. Furthermore, the Act creating the Internal Improvement Fund expressly authorized the use of the Fund in aid of drainage.
It is next contended by the respondents that Chapter 20477, Acts of 1941, being a local law, was not properly advertised. It is contended that the publication of the notice of intention to apply for the enactment of the local law should have been published in accordance with the provisions of Chapter 49, F.S.A., relating to Legal and Official Advertisements, rather than Section 11.03 of Chapter 11, F.S.A., which concerns itself with Legislation. The State Constitution, Section 21, Article III, requires that notice of intention to apply for the passage of a local law shall be "published in the manner provided by law." Pursuant thereto the Legislature enacted said Chapter 11 which, in part, fully provides for the publication, and proof thereof, of intention to apply for local legislation. Chapter 11 further provides that the affidavit of publication shall be made by a person who "has knowledge of the matters stated" in the affidavit. The provisions of Chapter 11 were complied with and there is no merit in the contention of the respondents.
Respondents argue that this is a suit against the State of Florida and no authority for such suit has been given by the Legislature. The Internal Improvement Fund, and the office of trustees therefor, was created by the Legislature and acts under the authority of the Legislature. The Act creating the Fund contemplates the conduct of lawsuits and, when borne in mind that the trustees do not act under the powers and duties conferred upon them as administrative officers of the Executive Department of the State, it necessarily follows they, as such trustees, may be sued. No judgment is sought herein against the State.
By their amended return to the alternative writ, the respondents finally contend that they receive no benefits from the drainage system of the District and they should not be held liable for drainage taxes. They assert in their amended return, that pursuant to the requirement of the Legislative Act establishing the Station, the trustees have provided and constructed "all canals, drains and other reclamation works that may be required to completely protect and secure the said lands (of the Station) from overflow." Thereby, so they allege, the Station lands are within a self-contained drainage unit and are not benefited by the activities of the relator; that no water is pumped from the Station lands by the District, nor does the Station pumping system dispose of any of its drainage into the canals of the District. Respondents further assert that the District allows water from the District to seep onto the Station lands "by percolation through the ground"; further, that during the "flood" of 1928, the water level in the District became so high that the levees of the Station were breached causing considerable damage and expense to the Station.
The Legislature, by Section 12 of Chapter 17258, Acts of 1935, determined in the following language, that the lands within the District would be benefited by the drainage system of the District: "It is hereby ascertained, determined and declared that all of the works of public improvement which have heretofore been constructed by the Board of Supervisors of South Florida Conservancy District have conferred a benefit upon the lands upon which the `Bond Tax' of said District is required to be levied, under the provisions of this Act, for the year 1935 and subsequent years, in an amount at least equal to the taxes which have been levied and imposed upon such lands for the year 1934 and prior years, plus the sum of Fifty Dollars ($50.00) per acre; and that such works of public improvement have conferred a benefit upon all other lands within said District in an amount at least equal to the total amount of taxes which have been paid upon such lands for the year 1934 and prior year." Lack of benefits cannot form a defense to or the means of attack on tax liability to a drainage district under a statute providing that the taxes are for a special benefit to the lands involved unless there is a clear showing of abuse of discretion on the part of the Legislature. In Bannerman v. Catts, 80 Fla. 170, 85 So. 336, 343, we said: "It is a well-settled principle that the legislative determination of the benefits derived or the necessity and advisability of a local or special assessment is conclusive and not subject to review by the courts unless it is so devoid of any reasonable basis as to be essentially arbitrary and an abuse of power.' Hagar v. Reclamation District No. 108, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763; Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369; French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; State v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 47 So. 969, 32 L.R.A., N.S., 639; Davis v. Florida Power Co., 64 Fla. 246, 60 So. 759. Again, in the case of Martin v. Dade Muck Land Co., 95 Fla. 530, 116 So. 449, 465, this Court said: "Where a local public improvement or facility is directly or indirectly, but peculiarly, though incidentally or generally, beneficial to a local community or to a particular portion of the state or of a county, it is within the power of the Legislature by valid enactment to formulate a special taxing district including therein property that reasonably may be benefited generally or incidentally by the contemplated local improvement or facility, and to levy a reasonable tax upon all the real estate included in the district to pay for the local improvement or facility; and such legislative enactment will not be declared to be invalid by the courts, unless the action is clearly arbitrary and oppressive, and plainly violates organic rights. * * * The benefits need not be direct, but may be indirect, incidental, and general, having reference to advantages to the district as an entirety, and not to immediate, direct benefits to particular parcels of property in the district. In this case, the benefits having been determined by statute, such determination should not be disturbed by the courts, in the absence of a clear and convincing showing that the purpose is to tax particular property without any corresponding benefit, but solely for the benefit of other property, or of a sufficient showing of other abuse of legislative power that violates organic property rights. There is no such showing here."
Let us briefly examine the question of benefits. Section 10 of the Station lands was, from the time of the organization of the District in 1919 until conveyed to the State Board of Education in 1931, in private hands. It was during this period that the original bonds were issued and the drainage system of the District constructed. Furthermore, relators allege that when the waters of the District are permitted to reach a certain level such waters "percolate" onto the lands of the Station. It seems to us that were it not for the District drainage system the waters might percolate even more onto the Station lands. It is also reasonable to assume that the District handles water which percolates from the Station lands. We do not believe the allegations of the amended return are sufficient to show that the Legislative determination of benefits was an abuse of legislative authority.
In this connection we might also point out that Section 3 has been owned by the trustees or the State Board of Education since the creation of the District in 1919 — some 32 years. Section 10 has been owned by the State Board of Education since 1931 — some 20 years. There has been ample time for the State Board of Education, or its predecessors in title, to object to the formation of the District, the construction of works, the issuance of bonds, and the maintenance of the District through the years, or, if grounds they had, to object to the inclusion of their lands within the District. After a lapse on the part of respondents of more than 20 years, we feel they must be governed by our decision in the case of Baldwin Drainage District v. MacClenny Turpentine Co., 154 Fla. 525, 18 So.2d 792, 796, wherein we said: "We are prompted here to draw attention to the reference in State by Watson, Atty. Gen., v. Covington, supra [ 148 Fla. 42, 3 So.2d 521], to `contractual and other rights * * * acquired and not fully discharged' pursuant to the `jurisdiction and powers' of a district of at least de facto status. A circumstance of material significance is the effect upon other property owners, those who have paid their taxes from year to year, were the appellants favored with the decree they sought. Such relief would disrupt the original plan of distributing the burden at a time too late to revise it."
The motion for a peremptory writ notwithstanding the return is granted. It is so ordered.
SEBRING, C.J., and THOMAS, ADAMS and ROBERTS, JJ., concur.
TERRELL and CHAPMAN, JJ., dissent.
As pointed out in the main opinion, the lands involved in this case are Sections 3 and 10, Township 44, South, Range 37 East and they belong to the Everglades Experiment Station. When all the window dressing is brushed aside the only point for adjudication is whether or not these lands are subject to the bond and maintenance taxes imposed by relator.
I think this question requires a negative answer because said lands are a part of the State School fund as provided by Section 4, Article XII of the Constitution, F.S.A., and the consistent policy of the State through its history has been to exempt such lands from taxation of all kinds. This policy has been repeatedly expressed by the legislature and approved by decisions of this Court. The last expression of the legislature was in Section 4, Chapter 25186, Acts of 1949, F.S.A. § 229.241(4). See also Southern Drainage District v. State, 93 Fla. 672, 112 So. 561 and other cases for expressions of this Court to same effect.
In the second place the very basis for the tax brought in question is benefits. It would be trite to cite decisions on this point. The taxes are imposed on the lands of Everglades Experiment Station by Chapter 25434, Acts of 1949, but the record shows that said lands are not now receiving and have never received any benefits from the construction, operation and maintenance of the drainage works of relator, South Florida Conservancy District. In support of this thesis the return of respondents alleges that in compliance with Chapter 8442, Acts of 1921, F.S.A. § 241.28 et seq., creating the Everglades Experiment Station they completely protected the lands therein by a system of drains, canals and such other reclamation works as were necessary for that purpose. All of which was done and completed prior to the completion of South Florida Conservancy District. I think the allegations of the return completely eliminate any possibility of benefits on these lands by the drainage works of respondents.
In this holding I do not overlook the finding of benefits by the legislature as detailed in Section 12, Chapter 17258, Acts of 1935. I appreciate the force of this finding but such findings may be rebutted by a showing of abuse of legislative discretion. I think the record shows that it is physically impossible for the lands in question to derive any benefits from the drainage works of respondents and being so, the legislative finding is completely rebutted. Martin v. Dade Muck Land Co., 95 Fla. 530, 539, 116 So. 449. It is shown that the lands of Everglades Experiment Station are completely protected by drainage works supported by State taxes and being so, the attempted collection is for a service not rendered.
For these reasons I feel compelled to dissent from the majority opinion. I think the alternative writ should be quashed, and the cause dismissed.