I fully concur in the holding in the foregoing majority opinion that no authority existed for making the State a party defendant in this suit which was instituted in the Circuit Court to foreclose municipal tax liens on property, title to which had become vested in the State of Florida under the provisions of Section 9 of Chapter 18296. It seems to me that this holding alone is determinative of this appeal. But I must dissent to the further holding in the majority opinion to the effect that if the State by legislative action should authorize suits against the State in cases of this kind, municipalities could then enforce municipal tax liens upon such properties, the title to which has become vested in the State under the provisions of the Murphy Act, citing as authority for this holding the case of Bice v. Haines City, 142 Fla. 371,195 So. 919. With the greatest respect for the author of the opinion on rehearing in the Bice case and the other *Page 117 members of the Court who concurred in that opinion (Mr. Justice Terrell and the writer dissenting) I am profoundly convinced that, if we are to rule on that question in this case at all, we should return to and follow the principles laid down in the opinion of Mr. Justice Terrell in the case of State ex rel Hurner v. Culbreath, 140 Fla. 634, 192 So. 814, wherein it was said:
"Is Chapter 18296 unconstitutional for the reason that the forfeiture to the State thereunder for nonpayment of taxes destroys the lien of the county, municipality, drainage or other taxing districts previously acquired for the non-payment of their taxes?
This question must be answered in the negative. The power of taxation is a part of the sovereign power of the State. It inheres in the county, municipality, drainage, and other taxing districts only to the extent conferred by the State. It is quite true that instances may be pointed out in which State, county, municipal, and other district taxes have been made of equal dignity by legislative fiat but this is true only so long as the taxes are payable. When the lands revert to the State for non-payment of taxes, the lien of the State becomes paramount, and may be satisfied to the exclusion of all other liens.
Tax liens are creatures of statute and have no constitutional recognition as such. City of Sanford v. Dial, 104 Fla. 624,142 So. 233. A tax does not become a lien unless made so by statute and the intent to create it must be clearly shown. The extent to which it is created is determined by statute but regardless of the entities that may be vested with it when it reaches a state of doubtful or speculative value, the claim of the State is at all times superior. When the *Page 118 property is sold to satisfy the lien of the State, the lien of minor political entitites is divested in like manner that the claims of junior mortgages are extinguished at a foreclosure sale and the purchaser takes the title of the owner as well as the lien of the State. City of Paducah v. Green, 12 Ky. Ops. 701."
In the majority opinion on the original hearing in Bice v. Haines City, supra, which was likewise written by Mr. Chief Justice Terrell, and which was concurred in by all the other members of the Court, it was said that:
"The first question urged challenges the validity of Section 9 of Chapter 18296 in that it seeks to divest municipalities of their liens acquired for the nonpayment of city taxes and vest a fee simple title in and to the lands covered thereby without making compensation therefor.
"Since the entry of the order appealed from, this Court has in State ex rel. Hurner v. Myrtle M. Culbreath, et al., opinion filed October 6, 1939, answered this question contrary to the contention of appellant. Appellees contend that the last cited case does not conclude the question because of the holding of this Court in City of Sanford v. Dial, 104 Fla. 1, 142 So. 233, and like cases, wherein we held that under Section 894, Compiled General Laws of 1927, all liens for State, County and Municipal taxes as distinguished from special assessments were on an equal footing.
We were mindful of this line of cases when we decided State ex rel. Hurner v. Culbreath supra, but they do not affect the case at bar. While Section 894, Compiled General Laws of 1927, did have the effect of placing State, county and municipal tax liens on *Page 119 the same level, it created no vested right in any of the entities holding them. It was competent for the Legislature to change the status of the liens brought in question and Section 9 of Chapter 18296 accomplished that purpose."
On rehearing in that case, by a four to two decision, this Court reversed its position and held that municipal tax sale certificates and tax liens existing on land covered by State tax sale certificates were not affected by the vesting of titles to such lands in the State under the Murphy Act (Chapter 18296); that the State became vested with the fee simple title of the lands subject to the municipal tax liens.
I think we should return to our first holding in the Bice case, and to the principles laid down in Hurner v. Culbreath. It seems to me that the language and the plain purpose of the Murphy Act requires us so to do. It is in line with the reasoning of the majority opinion in the case of Messer v. Lang, 129 Fla. 546, 176 So. 548, in which the constitutionality of the Murphy Act was upheld. It is also in line with the case of Ridgeway v. Reese, 100 Fla. 1304, 131 So. 136, and State ex rel. Dowling v. Butts, 111 Fla. 630,149 So. 746.
The writer concurred in the opinion of the Court in Messer v. Lang, supra, which was written by Mr. Justice Terrell, and also wrote a concurring opinion in which I reviewed the previous decisions of the Court bearing on the questions there involved, in which opinion I reached the following conclusions which are in complete harmony with the holding in the subsequent case of Hurner v. Culbreath, and which were as follows: *Page 120
"It appears therefore from the previous opinions and decision of this Court that from the process of taxation, as to which the Constitution requires uniformity, came to an end, at least so far as the State was concerned, when the effort to collect taxes failed, and the lands upon which taxes had not been paid were duly advertised and sold under the basic tax statute above referred to, and the delinquent owner failed to redeem within the two-year period allowed for redemption. If there were no bidders at the sale and the State therefore had to become and did become the purchaser, and the owner allowed the two years to expire without redemption, then and there the title vested in the State without the execution of a deed and the tax certificate issued at the sale became evidence of the State's title. Thus, the process of assessing and collecting taxes on the lands here involved, in so far as it was possible to collect them, had come to an end, the property taxed had been, in effect, confiscated, and taken by the State in the exercise of the tremendous but absolutely necessary power of taxation. And, as stated in the above quoted opinion of Mr. Justice Whitfield, when the State has become the purchaser at the tax sale and the period for redemption had expired the taxcertificate became the property of the State, which it may dispose of in such manner as the Legislature may prescribe when no organic rights are thereby violated; and as stated by Mr. Justice Ellis in his concurring opinion, when this point is reached, 'the relation of the owner of the land to the State in respect of the tax which was assessed against him, and which became delinquent and by reason of which delinquency the land was sold, is completely changed,' and 'when the State becomes the *Page 121 purchaser of the land at a tax sale it acquires a sort of property evidenced by the tax certificate which it is within the legislative power to sell or dispose of upon such terms and conditions deemed by that body to be wise and for the State's interest.'
"I find no provisions in our Constitution expressly prescribing or limiting the terms or conditions upon which the Legislature shall sell or dispose of tax certificates held by the State, or tax certificated lands."
There is no question about the authority of the legislature to deal with the subject which was dealt with in the Murphy Act. As was held in the case of Sanford v. Dial, 104 Fla. 1,142 So. 233, the subject of tax liens is controlled by statutes, inasmuch as the constitution contains no regulation on that subject. So we must look to the intention of the legislature, and I think that intention was correctly interpreted in the cases of Messer v. Lang and Hurner v. Culbreath, and also on the original opinion of the Court written by Mr. Justice Terrell, in Bice v. Haines City, supra. Not only is this intention shown by the Preamble to Chapter 18296, the Murphy Act, but it is evidenced by the strong and emphatic language of Section 9 of that Act. And the legislature has so interpreted it. In the recent case of Cone, et al., v. Wakulla County, 143 Fla. 880, 197 So. 536, we called attention to the fact that the Trustees of the Internal Improvement Fund were vested with authority to sell the lands, the title to which had vested in the State under the Murphy Act, to the highest and best bidder for cash, but no authority, up to that time had been given by the legislature to said trustees to disburse the proceeds of the sales of such lands. A few months after that decision was handed down the legislature *Page 122 did provide for the disbursement of such proceeds. See Chapter 20368 of the Acts of 1941 which was approved by the Governor on May 21, 1941. Section 1 of that Act reads as follows:
"Section 1. That the proceeds derived from sales of lands by the State of Florida, through the Trustees of the Internal Improvement Fund, pursuant to Section 9 of the Murphy Act, being Chapter 18296, Laws of Florida, Acts of 1937, amounting to $709,794.14 as of April 5, 1941, together with such further proceeds from such sales, shall, after all costs of such sales are defrayed, be immediately transferred from the fund in which the same are now or may hereafter be deposited in the State Treasury to the General Revenue Fund of the State to be used in meeting the general expenses of the State."
This recent statute, is in my opinion, not only a perfectly valid statute, but it is in conformity with the interpretation placed by this Court upon Section 9 of the Murphy Act in Messer v. Lang and State ex rel. Hurner v. Culbreath, supra.
I think this interpretation, as made both by this Court and by the legislature, of the meaning and effect of the Murphy Act, and particularly of Section 9 thereof, should be adhered to, and insofar as the majority opinion holds to the contrary, I must respectfully but earnestly dissent.