The Riviera Club v. the City of Ormond ( 1941 )

I am unable to concur in the conclusion reached in the opinion prepared by Mr. Justice WHITFIELD which results in certiorari being denied.

The allegations of the bill of complaint are sufficient to show that the plaintiffs are the owners of property located within and constituting a tract of about 35 acres of land; that the City of Ormond under the provisions of Chapter 15401, Special Acts of the Legislature of 1931, assumes to exercise jurisdiction over the said lands, assesses taxes against such lands and is proceeding to enforce the collection of occupational license tax from one of the owners of a parcel of such lands. It shows that the area covered by the parcels of land owned by the plaintiffs has never received any municipal benefits and that by reason of its location and character it can never receive any municipal benefits from the municipality.

If these allegations are true, then the City of Ormond possess no legal authority to taxes against the lands of the plaintiffs and has no legal authority to exercise any jurisdiction over the area in which such lands are located, until it can and does render municipal benefits.

That the remedy of injunction may be invoked to prohibit the exercise of taxing power by the municipality is well settled. See State ex rel. Attorney General v. City of Avon Park,108 Fla. 416, 149 So. 409; Martha Bright Farms v. Broward Port Authority, 117 Fla. 361, 158 So. 70; State ex rel. Harrington v. City of Pompano, 136 Fla. 730, 188 So. 610; City of South Miami v. State ex rel. Landis, 140 Fla. 740, 192 So. 624; City of Winter Haven v. A.M. Klemm Son, 141 Fla. 75, 192 So. 646.

Only ad valorem taxes were involved in the cases above cited, but if the area involved was so situated that no ad valorem tax could be lawfully assessed, then it follows that the city was without power to enforce other sorts of taxes applying to the same area.

Section 2 of Chapter 8586, Acts of 1921, Section 1039 C. G. L., provides:

"In any such cases the court may issue injunctions to restrain the sale of real or personal property for any tax, assessment or toll which shall appear to be contrary to law or equity, and in no case shall any bill be dismissed because the tax assessment or toll complained of, or the injunction asked for, involved personal property only."

A "toll" is that which is paid for a privilege. A license tax is the tax paid for a privilege. So, here "toll" is construed to include "license tax."

The purpose of the bill of complaint was to enjoin the assessment and collection of ad valorem taxes on the lands involved and to enjoin the collection of a license tax imposed by the city for the privilege of engaging in a certain business on the lands involved.

Incident to the main relief sought by one of the complainants it sought temporary injunction of the sale of personal property which had been seized by the city to enforce the payment of the involved license tax.

The allegations of the bill, if proved, will entitle the plaintiffs to the relief sought. If the relief against the assessment and collection of taxes is granted the plaintiff will have been deprived of its property without due process of law and the city will have received five hundred dollars to which it is not entitled.

So on the application made, the court should have restrained the sale of plaintiff's property until final disposition of the cause on the merits.

Certiorari should be granted and the challenged order quashed and the cause remanded for further proceedings.