City of Coral Gables v. Certain Lands Upon Which Taxes Are Delinquent

The City of Coral Gables sought to enforce the payment of delinquent taxes by the prosecution of a suit in Chancery Court under the provisions of Chapter 15038, Acts of the Legislature of Florida of 1931.

It is not necessary for us to quote the provisions of the Act in this opinion, as it is available in the published statutes of this State to all who are sufficiently interested to turn thereto and read the same.

It is sufficient to say that the Act provides for proceedings in rem against the property against which a tax assessment has been made, whether such assessment originated as an ad valorem assessment or as a special assessment, where such assessment, or assessments, have become a lien, or liens, upon the property.

The statute further provides that there may be included in one suit all or any part of the lands upon which tax certificates have been outstanding or taxes have remained delinquent or any special assessment or installment thereon shall have been in default for the respective periods named in the Act; and that there may be included therein all claims and demands of the Municipality against said lands or any part thereof for taxes, tax certificates and special assessment, or special assessments, or installments thereof which may be due and payable to the Municipality at the time of the institution of the suit.

The Act provides the manner in which the suit shall be brought and how jurisdiction may be obtained. That part of the Act pertaining to the acquisition of jurisdiction is as follows:

"Jurisdiction of any of said lands and of all parties interested therein or having any lien thereon shall be obtained by publication of a notice to be issued as of course by the Clerk of the Circuit Court in which such bill is filed on request of the complainant, once each week for not less than four consecutive weeks, directed to all persons and corporations interested in or having any lien or claim upon any of the lands described in said notice and said bill. Such notice shall describe the lands involved and the respective principal amounts sought to be recovered in such suit for taxes, tax certificates and/or special assessments on such respective parcels of land, and requiring all such parties to appear and defend said suit on or before a rule day specified in said notice, which shall be not less than four weeks after the date of the first publication of such notice. Said notice may be in substantially the following form, with blanks appropriately filled in."

Then follows the form of notice required.

There was a special appearance and motion to quash the process and service of process which motion challenged the jurisdiction of the court over persons other than those appearing and, second, challenged the constitutionality of the mode of procedure prescribed by the statute under which the suit was brought. The Circuit Court correctly held that by filing motion of this character the defendants filing same entered a general appearance. Another special appearance and motion to quash the process and the service of process challenged the jurisdiction of the court over the person of themovant and over the property of the movant involved in the suit. The Court held that this motion constituted a general appearance. The motion contested not only the jurisdiction of the Court over the person of the defendant, but also the right of the Court to take jurisdiction over other defendants in the suit and insofar as the jurisdiction of the Court over other defendants is concerned the grounds thereof involve the merits of the case and constitute a general appearance.

Another ground of the motion filed by Coral Gables, Inc., was "because the mode of proceeding, the mode of service and the mode of constructive service are not due process of law but are violative of the provisions of the Fourteenth Amendment of the Constitution of the United States." This ground challenges the constitutionality of the statute prescribing the method of serving process and also the constitutionality of the mode of proceeding therein provided, which included all that the statute required to be done to authorize the foreclosure of such tax liens and included not only an attack upon the service of process, but likewise an attack on all other proceedings taken in the case and the motion was, therefore, one which presented other issues than the jurisdiction of the Court over the defendant.

The holding of the Circuit Court that the filing of those motions constituted general appearances is supported by the opinions and judgments in the cases of Ortell v. Ortell,91 Fla. 50, 107 So. 442; Capper et al. v. Bonbright et al.,94 Fla. 1237, 115 So. 540; First National Bank v. Board of Public Instruction, 93 Fla. 182, 111 So. 521; State ex rel. Pepper v. Atkison, 98 Fla. 996, 124 So. 458; and cases there cited.

This case presents no question concerning the validity of the assessment and levy of the creation of the lien by the proper procedure on the part of the taxing officials. We are asked to consider and deal only with the questions which are presented by the challenge of the right of the City to pursue the procedure authorized under Chapter 15038, supra. It is contended that the procedure prescribed by this statute results in owners and claimants of other interests in property being deprived of their property without due process of law, and the appeal is from a judgment of the Circuit Court which in effect holds the Act unconstitutional on that ground.

In Fiehe v. Householder Co., 98 Fla. 627, 125 So. 2, we adopted the general definition found in 6 Rawle C. L. 446 of the essential elements of due process of law and in Tibbetts v. Olson, 91 Fla. 824, 108 So. 679. Mr. Justice WHITFIELD, speaking for the Court said:

"The Constitution is designed to prescribe and limit governmental powers and to secure individual rights against unlawful invasion by public officers or by private parties. The courts are required to adjudicate rights 'by due course of law,' the essence of which is that by appropriate procedure, duly prescribed, fair notice and a reasonable opportunity to be heard shall be given to interested parties before judgment or decree is rendered."

Due process of law in connection with the enforcement of liens for taxes is not to be confused with, and measured by, the same standards as must be the requirements of due process of law when rights are sought to be enforced between individuals.

Mr. Cooley in his excellent work on Taxation, Vol. 3, Section 1326, 4th edition says:

"Very summary remedies have been allowed, in every age and country, for the collection by the government of its revenues. They have been considered a matter of state necessity. Without them it might be possible for a party which had been defeated in its efforts to obtain possession of the government in the constitutional way, to cripple the government for the time being, and possibly to break it up altogether. If the state might be deprived of the resources for continuing its existence and performing its regular functions until a revenue could be collected by the processes provided for the enforcement of debts owing to individuals, it would be continually at the mercy of factions and discontented parties. Obviously this could not be tolerated. The protective principles of common law are not supposed to be violated by a resort to summary proceedings in these cases. Summary processes are not necessarily unjust, though they would be so if they deprived the party of a hearing or if they precluded the opportunity for a patient and deliberate examination of the questions upon which his rights depend, before such rights could be finally concluded and cut off. But it is not the design of legitimate tax legislation to do this in any case. It may depart widely in its methods from those resorted to for the enforcement of rights at the common law, but the fundamental rules of justice will be observed, and, in theory at least, revenue laws will careful be for the protection of individual rights."

In the case of Leigh v. Green, 193 U.S. 79, 48 Law Ed. 623, the Supreme Court of the United States had under review the judgment of the Supreme Court of the State of Nebraska obtained in a suit under the statutes of Nebraska for the enforcement of liens for taxes by sale of the property. That statute provided for service of process in Section 5 thereof as follows:

"Service of process in causes instituted under this Chapter shall be the same as provided by law in similar cases in the District Courts, and where the owner of the land is not known the action may be brought against the land itself, but in such case the service must be had as in the case of a non-resident: if the action is commenced against a person who disclaims the land, the land itself may be substituted by order of court for the defendant, and the action continued for publication."

The Court, speaking through Mr. Justice DAY, in the same case, said:

"A motion is made to dismiss because the claim of impairment of a right secured by the Fourteenth Amendment was not made in the courts of Nebraska until the motion for re-hearing was filed in the Supreme Court. We are unable to discover a specific claim of this character made prior to the motion for re-hearing. In the motion reference is made to the failure of the Nebraska Supreme Court to decide the claim heretofore made, that the statute of Nebraska was unconstitutional because of the alleged violation of the right to due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. Be this as it may, the Supreme Court of Nebraska entertained the motion and decided the Federal question raised against the contention of the plaintiff in error. In such case the question is reviewable here, although first presented in the motion for re-hearing. Mallett v. North Carolina, 181 U.S. 589.

"The Federal question presented for our consideration is briefly this: Is the Nebraska statute under which the sale was made and under which the defendant in error claims title, in failing to make provision for service of notice of the pendency of the proceedings upon a lienholder, such as Patrick, a deprivation of property of the lienholder without due process of law within the protection of the Fourteenth Amendment?

"The statutes of Nebraska under which the conveyances were made to the Farmers' Loan and Trust Company are given in the margin.

"The evident purpose of Section 4, where the owner of the land is unknown, is to permit a proceeding in rem, against the land itself, with a provision for service as in case of a non-resident. By Section 6 it is provided that in cases where the land itself is made defendant the deed shall be an absolute bar against all persons, unless the court proceedings are void for want of jurisdiction. The object and intent of the action is defined to be 'to create a new and independent title, by virtue of the sale, entirely unconnected with all prior titles.'

"The Supreme Court of Nebraska has held that the term 'owner,' as used in the fourth section, applies to the owner of the fee, and does not include a person holding a lien upon the premises. It is this Section (4) and Section 6 which are alleged to be in conflict with the Fourteenth Amendment. The argument for the appellant concedes that the State may adopt summary or even stringent measures for the collection of taxes so long as they are 'administrative' in their character; and it is admitted that such proceedings will not divest the citizen of his property without due process of law, although had without notice of assessment or levy, or of his delinquency and the forfeiture of his lands. But the argument is, that when the State goes into court and invokes judicial power to give effect to a lien upon property, although created to secure the payment of taxes, the same principles and rules prevail which govern private citizens seeking judicial remedies, and require service on all interested parties within the jurisdiction. The right to levy and collect taxes has always been recognized as one of the Supreme powers of the State, essential to its maintenance, and for the enforcement of which the Legislature may resort to such remedies as it chooses, keeping within those which do not impair the constitutional rights of the citizen. Whether property is taken without due process of law depends upon the nature of each particular case. If it be such an exercise of power 'as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the classes to which the one in question belongs,' it is due process of law. Cooley on Const. Lim (7th ed.) 506.

"The most summary methods of seizure and sale for the satisfaction of taxes and public dues have been held to be authorized and not to amount to the taking of property without due process of law, as a seizure and sale of property upon warrant issued on ascertainment of the amount due by an administrative officer. Murray v. Hoboken Land Co., 18 How. 272; The seizure and forfeiture of distilled spirits for the payment of the tax, Henderson's Distilled Spirits, 14 Wall. 44. The subject underwent a thorough examination in the case of Davidson v. New Orleans, 96 U.S. 97, in which Mr. Justice MILLER, while recognizing the difficulty of defining satisfactorily due process of law in terms which shall apply to all cases, and the desirability of judicial determination upon each case as it arises, used this language: 'That whenever by the laws of a State, or by statute authority, a tax, assessment, service, or other burden is imposed upon property for the public use, whether it be for the whole State or some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections."

In George Hagar v. Reclamation District No. 108, 111 U.S. 71. 28 Law Ed. 569, the Supreme Court of the United States speaking through Mr. Justice FIELD, said:

"The objections urged to the validity of the assessment on Federal grounds are substantially these: that the law under which the assessment was made and levied, conflicts with the clause of the Fourteenth Amendment of the Constitution declaring that no State shall deprive nay person of life, liberty or property without due process of law; and impairs the obligation of the contract between California and the United States; that the proceeds of the swamp and overflowed lands ceded by the Arkansas Act shall be expended in reclaiming them.

"That clause of the Fourteenth Amendment is found, in almost identical language, in the several State Constitutions, and is intended as additional security against the arbitrary deprivation of life and liberty and the arbitrary spoliation of property. Neither can be taken without due process of law. What constitutes that process it may be difficult to define with precision so as to cover all cases. It is, no doubt, wiser, as stated by Mr. Justice MILLER in Davidson v. New Orleans, to arrive at its meaning, 'By the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be found.' 96 U.S. 104 (XXIV 619). It is sufficient to observe here that by 'due process' is meant one which following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights. Hurtago v. California (ante 232).

"The appellant contends that this fundamental principle was violated in the assessment of his property, inasmuch as it was made without notice to him or without his being afforded an opportunity to be heard respecting it, the law authorizing it containing no provision for such notice or hearing. His contention is that notice and opportunity to be heard are essential to render any proceeding due process of law which may lead to the deprivation of life, liberty or property. Undoubtedly, where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But where the taking of property is in the enforcement of a tax, the proceeding is necessarily less formal, and whether notice to him is at all necessary may depend upon the character of the tax and the manner in which its amount is determinable. The necessity of revenue for the support of the government does not admit of the delay attendant upon proceedings in a court of justice, and they are not required for the enforcement of taxes or assessments."

And, again, in the same opinion it is said:

"Of the different kinds of taxes which the State may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business) and generally, specific taxes on things or persons or occupations. In such cases the Legislature in authorizing the tax fixes its amount and that is the end of the matter. If the tax be not paid the property of the delinquent may be sold and he be thus deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer."

In Davidson v. Board of Administrators of the City of New Orleans, etc., 96 U.S. 97, 24 Law Ed. 616, the Supreme Court of the United States, speaking through Mr. Justice MILLER, said:

"There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State Court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any court to any part of the fundamental law.

"But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded. This court is, after an experience of nearly a century, still engaged in defining the obligation of contracts, the regulation of commerce, and other powers conferred on the Federal Government, or limitations imposed upon the States.

"As contributing, to some extent, to this mode of determining what class of cases do not fall within its provision, we lay down the following proposition as applicable to the case before us:

"That whenever by the laws of a State, or by state authority, a tax assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, which such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections."

In the case of Winona St. Peter Land Co. v. State of Minnesota, 159 U.S. 526, 40 Law. Ed. 247, the court had under consideration a statute of the State of Minnesota which provided for the enforcement of the tax lien in summary proceedings to be instituted by the county auditor. The statute provided that the filing of the list prescribed verified by the affidavit of the county auditor should be considered the filing of a complaint by the county against the piece or parcel of land therein described to enforce payment of the taxes and penalties appearing against it. The statute required publication to be made of the list, together with the notice in the form prescribed, for at least two weeks in some newspaper of general circulation in the county. It provided that 'Upon the final publication of this notice the jurisdiction of the court over the property attaches." The statute then provided for owners and others interested to appear and defend. In regard to the sufficiency of the notice required, the court, speaking through Mr. Justice BREWER, said:

"That the notice is not personal but by publication is not sufficient to vitiate it. Where, as here, the statute prescribes the court in which and the time at which the various steps in the collection proceedings shall be taken, a notice by publication to all parties interested to appear and defend is suitable and one that sufficiently answers the demand of due process of law. Taylor v. Secor, (State R. Tax Cases)92 U.S. 575, 609, (23; 663, 672); Hagar v. Reclamation Dist. No. 108,111 U.S. 701, 710; (28; 569, 572); Cincinnati N. O. T. P. R. Co. v. Kentucky (Kentucky R Tax Cases) 115 U.S. 321 (39; 414); Lent v. Tillson, 140 U.S. 316, 328 (45; 419, 425); Pittsburgh C. C. St. L. R. Co. v. Backus, 154 U.S. 421 (38; 1031). It cannot be doubted under these various authorities that in respect to the collection of these taxes ample provision is made for notice, and, therefore, it cannot be adjudged that the owner is, for want thereof, deprived of his property without due process of law."

The statute here under consideration requires that at least thirty days prior to the filing of the bill for the foreclosure of the lien, written notice of intention to file same should be sent by registered mail to the last known address of the holder of the record title and to the holder of record of such mortgage or other lien, except judgment liens, upon each tract of land to be included in such bill in chancery. It requires the publication of notice to all persons or corporations interested in or having any lien or claim upon the lands against which foreclosure suit is filed, once a week for at least four consecutive weeks prior to the return day and the mailing of a copy of such notice to the holder of record title to the holders of record other than judgments at the last known address by the Clerk of the Circuit Court in which the suit is filed.

Therefore, the statute has provided for all notices to interested parties which is essential to satisfy the due process clause as contained in the 14th Amendment to the Federal Constitution.

It is contended that the provision of the statute contained in Section 4 hereinabove quoted directing publication of notice to be issued is so vague, indefinite and uncertain as to be ineffectual to comply with the due process clause of the Federal Constitution. In connection with this clause of the statute we must read such other provisions of law as may be applicable thereto. This, of course, is a legal notice, being one in connection with and relating to judicial proceedings. Section 2942 R. G. S., 4666 C. G. L., provides as follows:

"Official and legal advertisements relating to any proceedings in any court in this State, and all legal notices and advertisements of sheriffs or tax collectors, unless otherwise provided by law shall be published in the newspaper printed either wholly or in part in the county where such publication is required to be made."

When this section is read in connection with the provisions of the Act here under consideration we find that the published notice required by the Act is required to be published in a newspaper printed either in whole or in part in the county where such publication is required to be made. The record shows that such provisions of law were complied with

The suit is against the property. In other words, it is a suit in rem to enforce the payment of the delinquent tax by sale of the property under foreclosure of the tax lien. The statute warrants no personal judgment against the owner of the property or the owner of any interest therein, or any lien thereon. It constitutes a valid provision for the enforcement of the tax lawfully levied and assessed against the property within the municipality.

On authority of the opinions in the cases hereinbefore cited, we hold that neither the due process clause of the Federal Constitution or Section 12 of the Declaration of Rights of the State is violated if the taxpayer is given notice to be heard in the proceedings which may be provided by statute for the enforcement of the lien for taxes. It is not necessary for us to determine in this case whether a notice and opportunity to be heard in the proceedings for the assessment of a tax would suffice to satisfy the organic provisions above referred to, if enforcement of the collection was sought in a judicial proceeding without notice of such proceeding, though there are some authorities which so hold, because the statute authorizing summary proceedings involved in this case provides for ample notice to and opportunity to be heard by, all interested parties and is sufficient to vest the court with jurisdiction of the subject matter of the suit.

The decree of the chancellor holding the motions to quash to be the equivalent of general appearances is affirmed. The decree insofar as it holds the Act under consideration invalid because of being in conflict with the due process clause as contained in the 14th Amendment to the Federal Constitution, or in conflict with Section 12 of the Declaration of Rights of the State of Florida, should be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.

DAVIS, C. J., and WHITFIElD, and TERRELL, J. J., concur.

ELLIS and BROWN, J. J., dissent.