I concur in the conclusion reached in the opinion prepared by Mr. Chief Justice DAVIS that the proposed refunding bonds therein referred to will constitute the valid and binding obligation of the City of Jacksonville and that the terms and conditions of the bonds and the resolutions pursuant to which the same are to be issued constitute the same refunding bonds under the laws and Constitution of the State of Florida and that no election of freeholders is required under the Constitution to authorize the issuance of such refunding bonds. This conclusion can only be reached, however, by construing the words "pledge the entire taxable property in the City of Jacksonville to secure the payment of the bonds" to mean only a pledge of the taxing power of the city and not as a pledge of any real or personal property within the city except as the same may become effected by liens accruing in favor of the city for the amount of taxes lawfully levied.
I do not concur, however, in that part of the opinion which discusses and holds that the exemption provisions contained in Article X, Section 7, of the Constitution of Florida as adopted at the general election on November 6th, 1934, exempting from taxation homesteads up to the value of $5,000.00 will not be applicable to taxes levied to provide a sinking fund and to pay interest on such refunding bonds for the reasons that I think the determination of that question *Page 519 is not involved in the statutory proceedings seeking to validate the bond issue. Whether or not taxes may lawfully be levied on that particular property to raise funds to create a sinking fund and to pay interest on these bonds could in no wise affect the validity of the bonds. The bonds purport to pledge the funds that may be derived from a tax levy on all the taxable property within the County of Duval and whether certain property in the county is taxable or not does not affect the validity of the bonds. Therefore, whatever may be said by this Court in an opinion on these proceedings in regard to whether or not the exemption will apply when taxes are levied to pay those bonds is obiter and without any force and effect to bind either a taxpayer or a bondholder and is a mere gratuitous expression of what members of the Court may conceive to be the law in that regard. If a taxpayer should be entitled to the benefits of the exemption insofar as the tax applies to the funds to be raised for the payment of these bonds he cannot be assumed to have waived such constitutional rights nor to be estopped from exercising his rights by whatever may have transpired in these proceedings if and when an unauthorized tax shall have been levied against his homestead property. If, on the other hand, the Court should now hold that the exemption applies to levies made for this purpose, a bondholder would not be estopped or assert his rights if and when a tax assessor should not include in the assessment roll taxes on the property claimed to be exempt for the reasons above stated and because the determination of that question has no place in this which is a statutory proceeding brought for the purpose of validating the bond issue and nothing more.
It may be, and I concede that it is true, that it is of paramount importance to the State of Florida to have this question judicially determined by the Supreme Court at the *Page 520 earliest possible moment but that fact constitutes no justification for the Court to attempt to determine in this proceeding a question which is not before the Court in a case where that issue may be judicially determined and forever set at rest.
My view of the matter is that whether or not the exemption will apply either to taxes levied to procure funds with which to pay outstanding bonds or with which to pay refunding bonds issued after the adoption of the amendment is an open question which can only be determined in cases in which those issues are properly presented for judicial determination.
I do not think that the opinion and judgment of this Court in the case of Gray, Secretary of State, v. Moss, 115 Fla. 701,156 So. 262, estops a taxpayer from contesting and having judicially determined the validity of a tax assessment which may be levied after the adoption of the amendment upon his homestead property coming within the purview of the amendment. When such case is presented and reached for determination it must be borne in mind that the Court will be required to deal with the constitutional provisions and not with a statute. It will be required to deal with the rights of the State and its people as a sovereignty and to determine sovereign rights as distinguished from individual or community rights and to determine how far the State may exercise its sovereign right to limit or expend its sources of revenue after having authorized taxing units to incur obligations which have been incurred and for the security of which such taxing units have pledged the taxing power of such units, which will necessarily bring the courts to a serious consideration of what was said by Mr. Justice SWAIN in the case of Gilman v. Sheboygan,17 Law Ed. 305, as follows: *Page 521
"The Act of 1854 authorized the borrowing of money, the issuing of bonds, and the levying of a tax upon all the property in the city, for the purposes specified. The imposition, modification and removal of taxes, and the exemption of property from such burdens, is an ordinary exercise of the power of State sovereignty. There is no pledge, express or implied, that this power should not thereafter be exercised."
Should apparent expediency ever become the guiding star by which the course of judicial opinion and enunciations are to be laid, the science of law will become a farce and the safest author of human rights will have been cast away.
Therefore courts should attempt to determine only those issues which come to them properly and legally presented and then only in accordance with the fixed principles of law. Fixed principles may be effectively applied to new facts and new conditions without doing violence to either.