Prince Hall Masonic Building Ass'n v. City of Jacksonville

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 111 A suit was instituted in the circuit court by City of Jacksonville to foreclose municipal tax liens and special assessments on property, title to which had become vested in the State of Florida under the provisions of Section 9, Chapter 18296, Laws of Florida (Murphy Act), the original owner of the property, the State of Florida and others having been made parties defendant. The case proceeded to final hearing upon answers filed by the state and by the county of Duval, after decree pro confesso had been entered against the other defendants. The final decree provided for sale of the property and apportionment of the proceeds according to the amounts found due the city, the county and the state, respectively. The state appealed. The first and principal question presented to us is the one concerning the power of the court to entertain a suit against the State of Florida in the circumstances which we have given, it being the position of the State, represented by the attorney general, that no authority existed for the inclusion of the State as a party to the suit. Any right to bring suit against the State must be found in general law enacted in accordance with the terms of Section 22 of Article III of the Constitution whereby "Provision may be made by general law for bringing suit against the State as to all liabilities *Page 112 now existing or hereafter originating." The only legislative authority that is cited to us authorizing a suit of this character is Section 1, Chapter 18315, Laws of Florida, Acts of 1937, providing that "In any suit in equity brought by any . . . city . . . of this State for the purpose of consummating the enforcement in tax lien foreclosure proceedings of its tax or assessment liens . . . against property located therein, the State of Florida may be made a party defendant in such proceedings for the purpose of adjudicating therein its taxliens against said property and receiving from the proceeds of any foreclosure sale in such proceedings its proper and proportionate share of such proceeds in satisfaction of its said tax liens so adjudicated; and the State of Florida does hereby give its consent to be sued and made a party defendant in such suits for such purpose" (italics supplied). The same section of the act concludes with a provision that in an action of that kind a county or taxing district may likewise be made a party defendant for the purpose of adjudication and satisfaction of its liens. It cannot be gainsaid that the city has the right to foreclose its tax liens under Section 15038, Laws of Florida, Acts of 1931, but we do not find in that act any provision which will assist us in determining the question immediately present. It is doubtful that any authority to sue the state could have been given there in the view of the interpretation announced in State ex rel. Davis v. Love, 99 Fla. 333,126 So. 374. The determination of the first phase of the controversy must depend largely, if not entirely, upon a study of the Constitution, Chapter 18315, from which we have quoted, Chapter 18296 and the decision of *Page 113 this Court in Bice v. Haines City, 142 Fla. 371, 195 So. 919. The law upon which the city relies for authority to make the state a party must, under the rule which we have recognized in Kennard v. State Tuberculosis Board of Florida, 129 Fla. 619,176 So. 872, be given a strict construction and when this is done it is apparent the state could have ben a party to the suit only in the case of the adjudication of a lien for its taxes. Can the state's interest in the property involved in this suit be designated a lien in view of the provisions of Section 9, Chapter 18296, supra, wherein it was provided that title of land having the status of that sought to be sold in this litigation should become vested in the State of Florida in fee simple? The reply to this challenge by the State of authority to make it a party in the present proceeding when the only consent relied upon is that given in Chapter 18315, supra, providing that it may be impleaded in a suit where it has a lien, is that this Court decided in Bice v. Haines City, supra, that the provisions of that Act were sufficient for the purposes. The rebutter on the part of the State is that our expressions there on that particular subject were obiter dicta. It was written in the latter case that "It is necessary for the State to be made a party in authorized municipal tax foreclosure proceedings against lands, the fee simple title to which is vested in the State for a public governmental purpose," and in the next paragraph: Chapter 15038, Acts of 1931, together with Chapter 18315, Acts of 1937, authorize proceedings in rem to enforce municipal tax liens and give consent *Page 114 to make the State a party to such proceedings when the State has an interest therein." The language, considered alone and without reference to the questions presented and decided, could be easily and logically construed as a holding by this Court that the State was not only a necessary party but had given its consent to be included in a suit to enforce municipal tax liens even though the title to the property had become vested in the State under the so-called Murphy Act, but when the original file in the Bice case is scrutinized a different conclusion is reached. Chapter 15038 does authorize the foreclosure of municipal tax liens and Chapter 18315 does give consent of the State to be sued for the purpose of adjudicating its liens in the same suit but the question of authority to include the state in foreclosure where it had become the owner of property under Section 9 of the Murphy Act was not presented in the Bice case. Our examination of the original record in that appeal shows that but two questions were presented, both dealing with the constitutionality of Section 9 of the Murphy Act "in so far as it purports to effect a vestiture of title to all lands within the purview of Section 9 of said Act, and by such vestiture to extinguish the tax lien of municipalities as against such lands" and so far as it affected the securities issued by the City before the passage of the Act. We were not required in that litigation to pass on the authority of the City to include the State as a party defendant. The State was not represented, while here it is present, protesting through the Attorney General. Adverting to the language of the opinion on rehearing in the Bice case it seems fitting to observe that what we have quoted from it is not repudiated and we *Page 115 feel that the State must be a party to a suit, such as the present one, where it is vested with title in fee simple to the lands on which the City, by the very terms of that opinion, still has its claim for unpaid taxes. It is literally true that the Sections of the statute, 15038 and 18315, supra, grant authority for the foreclosure generally of city tax liens and for inclusion of the State as a party in such proceedings, where the State also has a tax lien, but there has been cited to us specific legislative authority to make the State a party to suits for the foreclosure of City tax liens after fee simple title is vested in the State and our conclusion is that until this consent is forthcoming the cities are powerless to enforce their claims. In the case of Cone, et al. v. Wakulla County, 143 Fla. 880,197 So. 536, it was expressly decided that a suit against the Trustees of the Internal Improvement Fund to have a trust declared in favor of the county and taxing districts in lands held by the State under Section 9 of Chapter 18296, supra, or the proceeds from their sales, was in effect one against the State and could not be maintained because of lack of legislative authority. This pronouncement on the subject by the author of the opinion in Bice v. Haynes City, supra, seems ample authority for determination of the instant case contrary to the contention of the city and the county. See also Southern Drainage Dist., et al., v. State et al., 93 Fla. 672,112 So. 561, and United States of America v. State of Alabama,85 Law Ed. 1327. Although the lien of the City remains unaffected by Section 9 of the Murphy Act it must look to the legislature for authority to make the State a party in the enforcement of its claim. *Page 116 We realize that this may result in the sale by the State of lands held in fee simple under the Murphy Act subject to city tax liens and that until such sale the cities will be unable to enforce their claims but, basing our conclusion solely on the failure to show any legislative authority, we feel that so long as the title remains in the State or so long as that authority is withheld such foreclosure must be in abeyance. Reversed. WHITFIELD, TERRELL, BUFORD, and ADAMS, JJ., concur. BROWN, C. J., concurs in part and dissents in part. CHAPMAN, J., not participating.