Prince Hall Masonic Building Ass'n v. City of Jacksonville , 149 Fla. 109 ( 1941 )

Our opinion in this cause is grounded upon the conclusion that the suit is one against the State and that the State through the legislature has not granted municipalities leave to sue the State in cases of this sort.

It is my opinion that the municipality has leave to maintain the suit under general law, viz: Chapter 18315, Acts of 1937, Section 1 of which Act provides:

"Section 1. In any suit in equity brought by any county, city, village or town of this State for the purpose of consummating the enforcement in tax lien foreclosure proceedings of its tax or assessment liens, whether such liens be evidenced by taxes or assessments duly levied and assessed upon the tax assessment roll or by tax certificates or tax deeds owned and held by it, against property located therein,the State of Florida may be made a party defendant in such proceedings for the purpose of adjudicating therein its tax liens against said property and receiving from the proceeds ofany foreclosure sale in such proceedings its proper andproportionate share of such proceeds in satisfaction of itssaid 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. And in any such suit in equity, brought by a city, village or town the county and any taxing district, having tax or assessment liens against the property involved may likewise be made a party defendant for the purpose of adjudicating and satisfying such liens therein." (Emphasis supplied.)

This Act must be read in pari materia with Chapter 18296, Acts of 1937, just the same as if the provisions of both Acts had been included in one Act.

By the provisions of Chapter 18296, supra, all State, County and district tax liens embraced within and evidenced by the State and County tax sales certificates were affected and the disposition thereof provided; but municipal tax liens remained unaffected by the provisions of that Act if the provisions of Chapter 18315, supra, are given effect. If Chapter 18315, supra, is not ascribed the effect which I insist it has, then the tax lien of the municipality and the security it has therein behind its financial obligations has been made ineffective and the municipality's power to enforce its lien is cut off because unless the State may be made a party defendant a sale under the municipal foreclosure can be of no avail as such sale would be made subject to the fee simple title in the State.

No one appears to question the conclusion that Chapter 18315, supra, was sufficient to authorize the municipality to make the State a party defendant in a suit to foreclose the municipal liens on property on which the State tax liens had not matured into title under the provisions of Chapter 18296, supra, nor does there appear any question that the municipality may under the terms of this Act make the State a party in foreclosure of tax liens which have accrued and become delinquent since 1939.

Now, my construction of the two Acts leads to the rationale that the legislature has, in effect, said:

"The State of Florida hereby provides for the final satisfaction of all State and County tax liens evidenced by certain aged state and county tax sale certificates outstanding, without prejudice, however, to the rights of municipalities to enforce their respective tax liens existing at the same time on the same property. To this end the municipality is granted the consent of the State to make the State a party defendant in suits wherein the municipality seeks to foreclose its tax liens which may be involved with State and County tax sale certificates."

The consent was absolute allowing the municipality to make the State a party defendant in all suits in which the municipality may seek to foreclose its tax liens and in such suits the State may be made such party defendant for the purpose "(a) of adjudicating therein its tax liens against the property; (b) and receiving from the proceeds of any foreclosure sale in such proceedings its proper and proportionate share of such proceeds in satisfaction of its tax liens so adjudicated."

If the legislature had intended that the consent to make the State a party defendant in suits only involving state and county tax sale certificates which had not matured by operation of law into title in the State the provision (a), supra, would have been all sufficient; but the legislature intended to provide a full and complete method for the clearing of all these antiquated tax liens and put the property as a live asset on the tax rolls. It, therefore, went further and granted the consent for the purpose of adjudication equitably prorating the proceeds of the foreclosure sale to be based upon the respective tax liens which had accrued by levies evidenced by the State and County tax sale certificate on the one hand and which had accrued by levies by the municipality on the other hand and all of which remained unpaid.

The fee simple title of the State is based on the tax lien for the State and county taxes and probably other taxes as shown in the respective certificates, and was acquired pursuant to statutory enforcement of these liens. The statute here under consideration provides a method and a means under which the municipal liens would continue to be respected and could be enforced pro tanto with the liens under which the state became vested with the fee simple title, subject, however, to the municipal tax lien.

For the reasons stated, I recede from the opinion filed herein on December 16, 1941, insofar as it is determined by the views expressed in that opinion that this suit may not be maintained against the State. In all other respects, I adhere to our opinion and judgment, supra.