On petition for rehearing it is pointed out that in the paragraph of the opinion beginning: "The contention is made that the final decree here challenged, etc.," the following language should be deleted, viz.: "The Clerk of the Circuit Court of Pinellas County," and the following language substituted, viz.: "the City Attorney for the City of St. Petersburg." We agree that this correction should be made, and it is so ordered.
It is next contended that the failure or omission on the part of the attorney for the City of St. Petersburg to send by registered mail to the last known address of the holder of the record title, and to the holders of record of each mortgage or other lien upon each tract of land to be included in the bill of complaint, written notice of intention to file a bill in chancery thirty days prior to filing any such suit, and the failure or omission of such attorney for the City of St. Petersburg to file a certificate that the written notice had been sent as required by Section 4 of Chapter 15038, Acts of 1931, Laws of Florida, and the failure to attach to the bill of complaint so filed the certificate as required by Section 4,supra, rendered the decree challenged on this record null and void.
We think the answer to this contention is found in the previous decisions of this Court when it was held that the requirements above pointed out were directory and not *Page 166 mandatory. See Fleming v. Fleming, 130 Fla. 264, 177 So. 607; City of Miami v. Certain Lands, 126 Fla. 781, 171 So. 798. This Court, speaking through the late Mr. Justice DAVIS, in the last cited case, in part said:
"As has been pointed out, Chapter 15038, Acts of 1931, creates a special in rem procedure, applicable to municipalities only, as complainants, and omits to provide for service of summons or constructive service of process against holders of tax certificates that are of equal dignity to those of the complainant. Hence the scope of the foreclosure is limited by the Act itself to foreclosing the owner only, and those whose claims are derived from, or subordinate to, the delinquent owner who has neglected to pay his taxes by reason whereof his lands are allowed to be foreclosed. So this is a proceeding in rem which can bind only the delinquent land as the rem and not those who hold outstanding tax certificates on it that are of equal dignity to the tax claims of the municipality foreclosing under said Chapter 15038."
The bill in the nature of a bill of review alleges, and the truth thereof is admitted on the motion to dismiss, that the Clerk of the Circuit Court of Pinellas County faiied and omitted to mail by registered mail a copy of the notice appearing as a part of Section 4 of Chapter 15033 to the record owners and holders of record liens at such last known addresses and for this reason the decree here challenged is void abinitio. It is difficult to understand how such a conclusion can be asserted in light of the utterances of this Court in City of Miami v. Certain Lands, supra, to the effect that the proceeding to enforce the special assessment under the provisions of Chapter 15038, Acts of 1931, was a proceeding inrem. The language used is, viz.:
"Chapter 15038, Acts, 1931, is designed and framed to providein rem procedure that according to its terms can *Page 167 only be effective for adjudicating and cutting off the delinquent title holder, the mortgage holder, or other persons subordinately interested in the delinquent land itself, as distinguished from adverse tax certificate holders who have rights in the delinquent lands that are equal in dignity to the claims in suit. This is so because the Legislature has the constitutional power to provide a judicial process for cutting off, by an authorized in rem foreclosure against delinquent tax lands, the title holder, mortgagees and other persons holding subordinate proprietary or lien interest in delinquent tax lands, when such interests are admittedly inferior in dignity to the lien for taxes.
"But the Legislature would have no right to thus impair and cut off adverse tax certificate lien holders possessing liens of equal dignity to those of the complainant municipal lienor that is authorized to prosecute in rem foreclosures under Chapter 15038, supra, only against the delinquent taxable interests in the tax encumbered lands involved."
It will be observed that the enforcement of the provision of Chapter 15038, supra, is against the property benefited on the theory or principle that the special or local assessment is merely a payment for an increase in the value of the property caused by the improvements placed thereon by virtue of the assessment and it is for this reason that the action to enforce the payment of the costs of the improvement is in rem and notin personam. The statute here does not provide for a personal liability or judgment against the owner, but his loss for non-payment is that of his property. The statute provides a method whereby the owner is made defendant and granted an opportunity to be heard. The owner is not here complaining about any of the benefits accruing to his property or that he was denied the privilege or opportunity to pay the amount of the benefits between the time the improvements were completed and the time of the *Page 168 institution of the suit to enforce the same. He complains because the Clerk failed or omitted to send him a copy of the notice to appear and defend the suit and asserts that for this reason the decree should be set aside. He does not contend that the notice as required by Section 4, supra, was not published as required by the terms of the Act.
Statutes for the enforcement of payment for sums due for special assessments are purely statutory and where a statute outlines the procedure to be followed, there must be a substantial compliance therewith. It is contemplated that all the mandatory provisions of Chapter 15038 must be complied with before the property can be sold to satisfy the amount due for the special assessment. See 44 C. J. 828, par. 3470. The due process of law provision of the Constitution is complied with when an opportunity for a hearing or trial is afforded. Volume 44 C. J., page 828, par. 8471, provides:
"Necessity of Hearing. — Where opportunity for hearing or trial is afforded, the statute satisfies the constitutional requirement of due process of law. Hence, the right to a summary judgment is subject to the restrictions and limitations contained in the statutes granting the right and designed to preserve their constitutionality, as for example, that the city board having supervision of the work shall file in court a certificate as to the sufficiency of the performances of the contract and that the landowner shall then be given an opportunity to be heard on whether the improvement conforms to the ordinance, that defendant shall have a right to file an affidavit denying liability and to have a trial of the issues raised thereby, that he shall have an opportunity for contest by means of an equitable proceeding for injunction, or that notice and demand for payment shall be served upon him before execution can issue."
Some States have enacted laws under which warrants *Page 169 are issued to the contractor making the improvements and the enforcement thereof is accomplished by an ordinary foreclosure suit. See McQuillin on Municipal Corporations (2nd Ed.), Vol 5, pages 881-2, par. 2287. In some States Acts authorizing the issuance of distress warrants and a sale of the land improved have been sustained by the Courts. See McQuillin on Municipal Corporations (2nd Ed.), Vol. 5, Sections 2289, 2290, pages 882-3.
The conclusion is inescapable that the failure of the clerk to send to the last known address of the owner of the property a notice of the suit as is provided for in Section 4 of the Act, supra, is at most directory and not mandatory. We have carefully considered the petition for rehearing and fail to find error.
The petition for rehearing is hereby denied.
TERRELL, C. J., WHITFIELD and BUFORD, J. J., concur.
BROWN, J., concurs in conclusion.
Justices THOMAS and ADAMS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.