In 1931 complainants in the court below were owners of a parcel of taxable real estate described in the bill as the Earnhardt building, which was assessed on the tax rolls of Lee County in the amount of $3510.00. That the property so assessed was income-producing property is a legitimate inference to be drawn from the description of it set forth in the pleading. Furthermore, that complainants did not pay, nor offer to pay, any taxes upon this real estate for the year 1931, or for any year since that time, is apparent also from the bill. Thus it was that as a direct result of complainants' delinquency in failing to pay their taxes on the parcel of income-producing real estate the property was sold in 1932 for such taxes. Under date of February 20, 1935, the holder of the tax certificate representing the sale applied for a tax deed to be issued pursuant to law. This suit, in the court below, was brought to have a decree entered cancelling as a cloud upon complainants' title the tax certificate issued thereon for the 1931 taxes *Page 26 and to have complainants' title to said Earnhardt building, the subject of the tax sale, established, quieted and confirmed as against the attempt of the holder of the tax certificate to obtain a tax deed pursuant to law in the event that the taxes assessed against complainants, with penalties imposed incident thereto, are not paid.
No complaint is made as to the manner of assessing the taxes for which the tax deed is about to issue. For aught that appears to the contrary, the tax imposed as a real estate tax is a just and proper one. It is only because of its alleged relationship to the acts of taxing officers with respect to other taxes on other classes of property that the enforcement of said taxes on complainants' real estate is alleged to be illegal. That complainants have stood silently by since 1931 without making any attempt to have rectified the conditions they complain of is admitted by the bill. Indeed, the complainants practically concede in their pleading that prior to the application for a tax deed upon their property they had no real objection to the validity of the taxes involved in this proceeding, because they undertake to excuse their non payment of the taxes by averring that for almost four years they have been attempting, without success, to borrow sufficient money to pay the taxes assessed on their real estate.
Sympathetic though we may be with the plight in which these ladies, who are complainants in this suit, may now find themselves (their condition, however, is no different from that of a great many other people who attempt to hold extensive holdings of real estate, the taxes upon which they are unable to meet), we are unable to agree with the conclusion that the bill of complaint in this suit states a cause for equitable relief of any character whatsoever. If it does, then by the same token there is not a single taxpayer in *Page 27 the State of Florida from the richest corporation to the poorest land owner who may not avail himself of a stereotyped copy of the present bill of complaint as a means of defeating the collection of any of the real estate taxes which may have been assessed and put on the tax rolls for the year 1931.
The sovereignty of the State of Florida depends upon its ability to enforce its laws for the levy and collection of taxes essential to support the government, the public schools, and the many objects of public enterprises which have gradually, in the course of governmental progress, become a part of the financial requirements of our commonwealth. That sovereignty is just as much defeated by refusing to give a remedy due by law to a tax certificate purchaser who has bought a certificate on property put up by the State and sold to the highest bidder as a means of compelling the taxpayer to pay what is due, as it would be defeated if the tax itself was entirely left off the roll.
A tax assessment without the ability of the State to sell the subject of the assessment if the taxes are not paid would be a mere brutum fulmen. Without buyers a tax sale would be a fruitless gesture. Without giving to the buyers some fair assurance that what the State holds out to them to be purchased is an enforceable lien against the affected delinquent tax property there will be no incentive to buyers to participate in tax sales. And the final result will be that every item of taxable property in the State of Florida will, of necessity, be knocked down and sold to the State to be held ad infinitum exempt from taxation, although the enjoyment of the property is continued in the hands of the delinquent owner who may still collect all available revenues therefrom and use them as he pleases to the prejudice of that uninformed class of simple minded *Page 28 souls who may unwittingly fail to appreciate the beneficences that legal technicalities of a kindly State holds in store for those who, like the prodigal son of Biblical times, may profit by their prodigality.
The taxpayers in this case are utterly without standing in a court of equity to complain of some fanciful increase in taxes by reason of the alleged failure of the tax assessor of Lee County to do his duty in placing on the tax rolls the large amounts that are allegedly liable on tangible property subject to taxation in that county, after waiting for four years, or more, to complain of the alleged dereliction in duty.
The constitutional amendment to Section 1 of Article IX, ratified in 1924, separately classified intangibles for tax purposes and made the same no longer subject to general property taxation in the same class as tangible personal and real property. The adoption of that amendment required special statutory action by the Legislature to put it into effect. Therefore it was not self executing. This is so, because under the terms of the amendment itself intangible property became subject only to special taxation as a separate class at "special rate or rates" to be so levied by the Legislature that "the taxes collected therefrom" could be apportioned by the Legislature to some legislatively declared object and so as to be "exclusive of all other state, county, district and municipal" taxes on the same property.
Prior to enactment of Chapter 15789, Acts of 1931, which did not become effective until January 1, 1932, the State Legislature had provided no means for executing the purpose and intent of the 1924 constitutional amendment on the subject of taxation of intangible personal property. That amendment, be it observed, limited the taxation of intangible property at a rate not to exceed five mills on the *Page 29 dollar and required such rate to be fixed by the Legislature, but between the date of ratification of the constitutional amendment of 1924, and the convening of the 1931 Legislature, no legislative attempt to carry out the provisions of the amended Constitution was successful. Therefore the status of the intangible property of all kinds, insofar as the taxes of 1931 are concerned, was at all times, to say the least of it, doubtful. In view of this fact, how can it be truthfully allegedas a matter of law, that the tax assessor of any particular county, such as Lee County, committed a legal fraud upon other taxpayers by deliberately, illegally, willfully, intentionally, arbitrarily and systematically omitting from the tax rolls of his county intangible property, since it was only subject to a special and limited kind of taxation, the provision for imposing which the Legislature had never carried into effect insofar as that year was concerned?
Our view is that the separate constitutional classification of intangibles for taxation provided for by amended Section 1 of Article IX at special rate or rates for any purpose that the Legislature should elect to apportion the proceeds (that is, for any state, county, municipal or school purpose the Legislature selected as the object of an appropriation of such taxes when collected) so takes intangibles out of the class of general taxable real and tangible personal properties in this State that no general property taxpayer can legally avoid the payment of his general property taxes otherwise lawfully levied, assessed and made enforceable for ordinary state, county, municipal and school purposes through local taxing processes, on the ground of alleged discrimination in omitting to tax intangible properties in any year that intervened between the 1924 ratification of the intangible property tax amendment and the 1931 Act of *Page 30 the Legislature which first put that amendment into practical operation as of January 1, 1932.
But let us assume that intangible properties had been placed upon the tax rolls of Lee County for the year 1931, even though Chapter 15789, Acts of 1931, was not then in effect. At what rate of taxation (which could not exceed the over all constitutional limit of five mills) would such intangible properties have been taxed and for what purposes would the taxation have been levied? For the year 1931 the Legislature made no provision for the separate taxation of intangible property as contemplated by the 1924 constitutional amendment. Even prior to the 1924 constitutional amendment serious doubt existed as to whether intangibles were comprehended within the scope of Section 1 of Article IX at all. The fact is that for practically every year from the adoption of the Constitution itself in 1885 until the Legislature considered the subject in 1923, intangible properties had in practical effect, if not in law, been actually exempted from taxation in this state by a universal concert of action on the part of the tax assessors in not attempting to place any such properties on the ordinary tax rolls. The only exception that I can recall to this practice occurred in a West Florida county where a newly moved in citizen from another state returned his intangibles for taxation, although he was the only one in his county who did so, and later sought judicial relief for his mistake in so doing. Hunter v. Turner, 44 Fla. 654, 45 Sou. Rep 509.
In this case the gist of the complaint asserted against the collectibility of complainants' real estate taxes is that the tax assessor of Lee County failed to put intangibles of any kind on the general property tax roll for that year — an omission that cannot be said to have been wrongfully, arbitrarily, *Page 31 systematically and intentionally done because of the doubt existing at that time as to whether intangibles were subject to taxation at all except under the 1931 Act of the Legislature, which did not go into effect until January 1, 1931.
But let us suppose the tax assessor was wrong and that he should have placed upon the general property tax roll of Lee County for 1931 all intangible properties that were subject to taxation in that county and that he should have placed them on such roll for taxation at the ordinary rates and for the ordinary purposes applicable to real property and tangible personal property. Does the omission of the tax assessor so to do entitle a real estate taxpayer who is delinquent in his real estate taxes for four years to now complain of that omission, in view of the circumstances that he has stood by for a period of time that has rendered it impossible for the state to rectify the error by back assessing the omitted intangibles for the year 1931 — the three-year period for back tax assessments having now expired? Certainly this is laches if that word still has any meaning as applied to delinquent taxpayers as distinguished from other litigants.
If the bill of complaint in this case shows the invalidity of the tax rolls of Lee County, then every tax roll in the State of Florida could be invalidated prima facie by the same allegations if filed in a bill of similar import. This could be immediately done by numbers of other delinquent real estate taxpayers who have waited until it is too late to "back" assess the alleged omitted intangible property whose exemption from taxation because of failure to assess same is the gravamen of complaint. Any judicial opinion fraught with such consequences involves a consideration which alone, it seems to me, should be sufficient to demonstrate *Page 32 the inequity of what is now sought to be pleaded as equity.
In the case of Liggett v. Lee, 288 U.S. 517, 53 Sup. Ct. Rep. 481, 77 L.Ed. 929, 85 A.L.R. 699 (which was an appeal from the Supreme Court of Florida and involved Florida law on the subject of taxation), the bill of complaint alleged that the state officials charged with enforcing the administration of a special tax had failed to demand the special tax and did not intend tocollect it from those liable. The prayer was that in order to rectify such alleged wrong in a court of equity that the court of equity should commit a further inequity by releasing complainant from his own liability for the tax it was alleged was being forgiven to others having the favor of the tax officers.
In support of its plea in that case, complainant relied upon precisely the same line of reasoning and authorities supporting same that were the occasion for this court's decision in West Virginia Hotel Corp. v. Foster Co., 101 Fla. 1147, 132 Sou. Rep. 842 — a doctrine which is proper in its limited phase of application, but not proper in a case like this, nor one to be extended beyond the narrow range of its controlling effect.
In rejecting the complainant's plea for relief by equitable interference with the tax collecting processes of the State of Florida because of alleged deprivation of the equal protection of the laws and taking of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, the Federal Supreme Court had this to say on the subject:
"The bill avers that the state officials charged with the administration of the Act have failed to demand the tax and do not intend to collect it from the owners of stores in certain lines of business, such as furniture dealers. This alleged *Page 33 official dereliction is claimed to be an unconstitutional discrimination in the enforcement of the Act. For this proposition appellants rely upon decisions such as Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, and Iowa — DeMoines Nat. Bank v. Bennett, 284 U.S. 239, holding a failure to assess all property taxed ad valorem at the same proportion of its value to be a denial of equal protection. The principle upon which these cases rest is that where a statute lays a tax upon property ad valorem at an even and equal rate, discrimination may result from the fact that the assessing officials systematically and intentionally value some property subject to the tax at a proportion of its true value different from that fixed with respect to other like property. They do not support the appellant's contention that where the taxing officials fail and neglect to exact the tax from some persons alleged to owe it, all others who are subject to the levy are exempt. This Court has said that in the case of unequal and discriminatory assessment, to hold that the complaining taxpayer's only remedy is to have the assessment on all the other property raised to a level with that of his own is in effect to deny any remedy whatever. As a consequence redress is afforded by requiring the assessing body to revise the complainant's assessment to the level of those upon other like property. Appellants insist that by analogy they are entitled to be exempt, if others are improperly relieved from taxation.
Under the law of Florida every unit of the taxpaying public has an interest in having all property subject to taxation legally assessed, and may in behalf of himself and others in like situation require that all property subject to taxation be placed on the tax books and bear its proportionate part of the expenseof government. The appellants, if *Page 34 they deem the tax illegally omitted in certain cases, may apply for a writ of mandamus to compel the taxing officials to do their duty. State, ex rel. Dofnos Corp. v. Lehman, 100 Fla. 1401, 131 Sou. Rep. 333. Failure to collect the tax from some whose occupations fall within the provisions of the Act, cannot excusethe appellants from paying what they owe. And certainly theremedy afforded by state law assures them equal treatment withall others similarly situated." (Emphasis supplied.) See pages 539-540, 288 U.S. Rep.
In this case, appellants as real property owners were no doubt entitled to equal treatment in the administration of the tax laws with owners of intangible property.
But the Constitution and laws of Florida have separately classified and taxed intangibles at special rates for different public purposes than ordinary real and personal property is provided to be taxed.
Whatever wrong was done to these appellants in the situation they attempt to complain of was committed by the Legislatures of 1927 and 1929 in failing to pass necessary statutes to give effect to the 1924 constitutional amendment to Section 1 of Article IX of the Constitution.
If the failure of the Legislature to act left intangibles subject to taxation on the general tax rolls as ordinary property, that wrong was plainly remediable by mandamus during that year or during the three years that succeeded it to allow for "back" assessments in accordance with general law.
Notwithstanding the existence of such plain, adequate and complete remedy on their part, appellants have waited until 1935 to seek a remedy in equity the effect of granting which will not be to enforce equal treatment in the administration of the tax laws, but to create in favor of *Page 35 appellants, and appellants alone, a further and more generous discriminatory exemption in the form of relief not only from state taxes, but county and school taxes as well.
Our view is that the appellants' suit is without equity and that the decree should be reversed and the bill dismissed attended by a dissolution of the injunction granted pursuant thereto.
It is so ordered.
WHITFIELD, C.J., and TERRELL and BUFORD, J.J., concur.
ELLIS, P.J., and BROWN, J., dissent.