Parker v. City of Jacksonville

Liddok, J.: The appellee filed a bill in equity to enforce a lien upon real estate for municipal taxes against the appellant. The original bill of complaint sought to subject under the lien a large number of lots for taxes amounting to $161.69. A demurrer to this bill was sustained, and an amended bill filed which sought to enforce such lien only upon lots 1, 2 and 3 of Block 34, of Parker’s subdivision of East Jacksonville, for the sum of $3.30. Exhibits attached to the bill of complaint and made a part thereof, show that the three-lots mentioned were valued in bulk at the aggregate sum of $600, and the sum of $3.30 above mentioned Avas assessed upon the three lots upon such aggregate valuation. The said three lots are sought to be sub — 350 — jected to one general lien for said amount, costs and attorney’s fees. A demurrer for general want of equity, and upon several other grounds was interposed to the bill of complaint and overruled. The appellant, who was defendant below, appealed from this interlocutory decree. . The bill of complaint does not show whether the assessment upon the lots in question was made upon a return of the same for taxation by the defendant, who listed the three lots in question as one tract or parcel of land, or whether they were listed, valued and assessed by the city authorities in the absence of such return. Guided by the rule, that upon a demurrer to a pleading all presumptions are against the pleader, we can not construe the bill of complaint as alleging a return or listing of the property for taxation by the defendant. Quite a number of matters are argued by appellant, among others we think it necessary to determine is, adopting the form of an interrogatory, as follows: Can a municipal corporation enforce a single general lien upon three different lots of land upon an aggregate valuation and assesement made by the city authorities without a return or listing in aggregate for taxation by the owner of the property? There is no averment of any municipal ordinance providing for such a lien and the enforcement thereof. We can not take judicial notice of any such ordinance. We do not indicate any opinion as to whether such an ordinance, if enacted, would be valid or invalid. We determine the question entirely from the standpoint of our Constitution and the acts upon our statute books. Under the allegations of the bill of complaint the tax lien claimed is by virtue of section 4 of Article XII, — 351 — Chapter 3775, laws of Florida, acts of 1887 p. 179, entitled “An act to establish the municipality of Jacksonville, provide for its government and prescribe its jurisdiction and powers.” • The relevant portion of such section is as follows: “Taxes and assessments on realty shall be and remain a lien on the property assessed until the same shall be paid. Such lien may, after return of nulla tona on a distress warrant, be enforced as other liens.” In State vs. Baker, 49 Texas, 763, cited with approval in Town of Kissimmee City vs. Drought, 26 Fla. 1, 7 South. Rep. 525, it is said: “The lots into which town or city blocks are subdivided, are generally regarded as separate and distinct tracts or parcels of land, as' much so as separate and •distinct though adjoining surveys or grants in the country; and each lot should be separately assessed.'” The constitution of Texas of 1868 provided (section 20, Article XII) that “the annual assessments made upon landed property shall be a lien upon the property.” The case of State vs. Baker, supra, was a suit to foreclose a tax lien for a gross sum assessed against .several lots in a block. Under the constitutional provision quoted the court held that the lien given is a charge merely upon each separate tract for the tax assessed against it, and that the suit to enforce a lien for a gross sum upon several lots could not be maintained. This case approved the former case in the same court, of Clegg vs. State, 42 Texas, 605, where the same point was likewise determined. The case of Edmonson vs. Galveston, 53 Texas, 157, was a suit to enforce a tax lien in favor of a municipal corporation. The court held that the construction of the lien provided by the constitution in State vs. Baker, and Clegg vs. State, supra, was applicable to tax liens claimed — 352 — by a city. The court said it could not ‘ ‘infer that a different or more enlarged lien should be had by towns and cities to secure and enforce the payment of municipal taxes than exists for those assessed in favor of the State.” See, also, 2 Desty on Taxation, p. 733. As the views of the Texas court seem in entire harmony with our system of assessing real estate for taxation, we adopt them. Town of Kissimmee City vs. Drought, 26 Fla. 1, 7 South. Rep. 525; Levy vs. Ladd, 25 Fla. 391, 17 South. Rep. 635. Upon the allegations of the bill of complaint, the complainant below could not enforce a general lien for a gross sum' upon three lots of land upon an aggregate valuation and assessment of them except for the validating’ act of 1891 hereinafter referred to. Another „ contention is, that the bill of complaint does not contain sufficient allegation of a legal assessment of the property. It i§ claimed that the bill should aver the several statutory steps required to create a legal and valid assessment. The allegation of the bill in regard to such assessment is as follows: “That upon the parcels, of land so owned by the defendant, the complainant for the year 1890 duly assessed and levied a tax for the sum of three dollars and thirty cents.” An objection similar to that now under consideration was made in the case of Lockhart vs. City of Houston, 45 Texas, 317, but the court said “the averment that the property was assessed for taxes was sufficient, -without specifying the officer by whom it was assessed, and without stating all the facts constituting a legal assessment. To require in the petition a detail of the facts necessary to make it appear that the levy and the assessment of the tax — 353 — were regular and legal would be both burdensome and useless. They are themselves facts sufficiently removed in their nature from mere conclusions of law to admit of being averred like the protest -of a bill of exchange without specifying what acts were done, or by what officer.” To similar effect are People vs. Todd, 23 Cal. 181, and 2 Desty on Taxation, p. 712. The city of Jacksonville is not represented in the case before us. Nothing appears in the pleadings or in brief of counsel as to the effect of the act of 1891, Chapter 4039 laws of Florida, upon this assessment. Section 2 of this act provides “that the assessments and levies of taxes as made and entered upon the several assessment rolls of said city of Jacksonville for the years 1887, 1888, 1889 and 1890, severally, * * are hereby legalized and confirmed.” Under the previous utterances of this court upon the subject there can be no doubt of the power of the legislative department of the State government to legalize and validate assessments and levies of taxes which, but for such legalizing action, would be irregular and invalid. Smith vs. Longe, 20 Fla. 697: City of Jacksonville vs. Basnett, 20 Fla. 525. But for this validating act we would hold the tax assessment void, and that proceedings to enforce a lien based thereon could not be maintained. We do not see that the validating act conflicts with any constitutional provision. It is not made to appear that any constitutional principle has beten violated in the assessment sought to be enforced. We must, therefore, uphold the statute. Bloxham vs. Florida Central & Peninsular R. R. Co., 35 Fla. 635, 17 South. Rep. 902. It is also objected that the distress warrant, described — 354 — in the bill of complaint, was issued for a greater sum and for taxes due upon other lots besides those in controversy. As the city is not represented here, and no complaint is made of the action of the court sustaining the demurrer to the original bill, we do not express any dpinion as to whether or not, in view of the. validating act of 1891, this ruling was correct or not. The only object and purpose of requiring a return of nulla bona upon a distress warrant was that exhaustion of personal property might thereby be shown and proper ground laid for proceedings to enforce the lien upon real estate. It clearly appears by the bill of complaint alleging return of nulla bona upon a distress warrant that no personal property can be found to pay the very tax sought to be enforced. The letter, as well as the purpose and spirit, of the law appears to have been complied with in this respect. The decree overruling the demurrer to the amended bill is affirmed.