The opinion
The courts are committed to the doctrine that where there is an intentional, systematic and unjust discrimination on the part of taxing authorities in favor of one class of taxpayers against the rest that it amounts to an unconstitutional denial of the equal protection of the laws to those who are discriminated against, as well as operates to deprive them of their property without due process of law by compelling them to pay an excesive burden of taxation to make up for what the authorities fail to collect from the specially favored. Louisville Nashville R.R. Co. v. Amos, 98 Fla. 350 , 123 Sou. Rep. 745 ; Camp Phosphate Co. v. Allen, 77 Fla. 341 , 81 Sou. Rep. 503 ; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 , 43 Sup. Ct. Rep. 190, 67 L. Ed. 340 ; Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350 , 38 Sup. Ct. Rep. 495, 62 L. Ed. 1154 ; City of Tampa v. Palmer, 89 Fla. 514 , 105 Sou. Rep. 115 ; Baker v. Druesedow, 263 U.S. 137 , 44 Sup. Ct. Rep. 40, 68 L. Ed. 212 ; Southern R. Co. v. Watts, 260 U.S. 519 , 43 Sup. Ct. Rep. 192, 67 L. Ed. 375 ; Greene v. Louisville I.R. Co., 244 U.S. 499 , 37 Sup. Ct. Rep., 61 L. Ed. 1280 .
The Legislature has no authority to authorize others to do that which the Constitution forbids, namely: specially *Page 156
favor one class of taxpayers at the expense of another, whether it be attempted during the process of tax assessment or afterward. An unconstitutional system for practical accomplishment of discrimination for the special benefit of delinquent taxpayers may consist of a permissibly practiced favoritism in the form of tax abatements after delinquency and is just as invalid in principle as such a system set up in advance of tax paying time would be. And this Court has so declared in the case of Ranger Realty Co. v. Miller, 102 Fla. 378 , 136 Sou. Rep. 546 , wherein it is said:
"So long as * * * the sale of the (delinquent tax) certificates is not shown to be intended to be made to the delinquent taxpayer himself so as to amount to an unconstitutional favoritism extended to such property owner at the expense of other taxpayers * * * a municipal corporation has the * * * power to sell and assign its past due tax certificates and to accept in consideration thereof less than the full amount," etc.
In that case we cited as authority for the foregoing holding the Kansas case of Lincoln Mortgage Trust Co. v. Davis, 76 Kan. 639 , 92 Pac. Rep. 707 , which holds that any statute authorizing the acceptance, directly or indirectly, of a part of a tax for the whole is unconstitutional as a denial of the equal protection of the laws and as a disregard of the requirement of equality and uniformity of treatment of all taxpayers, where it is intended as a favoritism extended to the property owner or to someone acting for him. See also: State, ex rel. Matteson, v. Luecke (Minn.) 260 N.W. Rep. 206 , to the same effect.
In Simpson v. Warren, 106 Fla. 688 , 143 Sou. Rep. 602 , it was likewise held that even the Legislature itself could not by direct statute to that effect, unconstitutionally discriminate against, and deny the equal protection of the *Page 157
laws to, that class of taxpayers who have already paid a given tax, by thereafter arbitrarily remitting and wiping out, by repeal or otherwise, the liability of those taxpayers, who by their delinquency for the time being, had postponed payment of their just share of the public tax burden.
It is patent upon a bare inspection of Chapter 17405, Acts of 1935, that said Act differs materially from any previously enacted statutes undertaking to deal with delinquent taxes. It differs from the "Futch" Act in that it authorizes the compromise and adjustment of "the amount required to be paid for the redemption settlement and liquidation" of taxes presumptively lawfully levied, and as to which no attempt has been made to collect them by the process available to the taxing authority according to law. Chapter 17405, supra, is not a statute which merely undertakes to deal with the taxing authorities' disposal of property forfeited to it or against which it holds a judgment or decree. Under this statute property owners are divided into two classes: those who pay taxes promptly and those who do not. The latter class is permitted to escape liability for the amount of taxes assessed against them by paying a smaller amount than the former. No reasonable basis founded on essential differences in nature or circumstances suggests itself as a justification for any such discrimination.
In this case the bill of complaint was filed in the court below by a taxpayer whose taxes had been duly paid at the time and in the manner required by law. That bill alleges that another delinquent taxpayer is about to be permitted to escape his tax liability amounting to $1600.00, by paying the mere sum of $500.00 in discharging delinquent taxes due the City of Marianna for the years 1927, 1928, 1930, 1931, 1932, 1933 and 1934. If the allegations of the bill are true, as we assume they are, the City of Marianna *Page 158
is about to relinquish to one delinquent taxpayer to the prejudice of many others not delinquent, an enforceable tax liability equal to the difference between $1600.00, the amount of the unpaid taxes, and $500.00, the amount of the compromise, namely, $1100.00.
The bill of complaint specifically alleges, and that allegation is not denied, that the City has already instituted suit against the delinquent taxpayer to enforce the payment of his $1600.00 unpaid taxes, and that the property of the delinquent taxpayer about to be foreclosed against is worth many times the amount of the delinquent taxes and interest due thereon. It is further alleged that no test has ever been made by the City of Marianna to demonstrate whether or not the delinquent taxes can be collected, and that each of the defendants, City Councilmen of the City of Marianna, who are about to effectuate the compromise with the delinquent taxpayer, well know that the taxes involved are collectible, and will be collected, if the pending suit, with enforcement of same, is allowed to proceed to final decree of foreclosure and not compromised.
It thus appears from the bill of complaint that the City of Marianna is about to relinquish for the sole and exclusive benefit of a single delinquent taxpayer, and without any constitutional reason being assigned therefor, a collectible asset of the City of Marianna that is equivalent in value to $1100.00. The necessary result of this attempted action is that the City of Marianna is giving away to one delinquent taxpayer to the prejudice of the plaintiff and other taxpayers $1100.00 that, if collected, is capable of being credited upon the budget of current requirements and thereby used to reduce the current tax levy in such amount as $1100.00 will reduce the total of plaintiff's taxes during the current tax year. *Page 159
In order to work equality of treatment of the plaintiffs, who are not delinquent in their tax payments, with the delinquent taxpayer named in the bill of complaint, there are available but two legal means of accomplishing that result: (1) by enjoining the compromise and thereby preventing the wrong to begin with; (2) by giving to the plaintiffs as taxpayers, a reduction of their current taxes in an amount equal to the $1100.00 asset that is being given away by the city for the benefit of one delinquent. If the courts deny the first relief, they must necessarily grant the second. This is so, because the United States Supreme Court, in the cases cited in the first paragraph of this opinion, has laid down the rule that if there is no other means of bringing about equality in tax burdens, the tax assessment of the complaining party must be itself diminished, if necessary, to remove the objection of one discriminated against by an act of favoritism on the part of the taxing authorities in reducing the taxes of others in such manner as to cause an increase in the burden of the complainant. The latter relief must be granted and will be granted in the Federal Courts, if not in the State Court, in situations such as those just mentioned.
I have heretofore pointed out that this Court, in the case of Ranger Realty Co. v. Miller, hereinbefore cited, specifically referred to and approved as an authority in this state, the case of Lincoln Mortgage Trust Co. v. Davis, 76 Kan. 639 , 92 Pac. Rep. 707 . In that decision the Supreme Court of Kansas says: "Whether a statute authorizing the acceptance of a part of the tax for the whole is passed before or after the levy, it is obnoxious to the Constitution if regarded as a favoritism to the property owner, but not if regarded as a permission granted to the local officers to accept less than the full amount due only because *Page 160
experiment has demonstrated that no more can be obtained." (Emphasis supplied.)
The Kansas Court, in that case, distinctly points out the difference between a case where delinquent property has been once exposed to delinquent tax foreclosure for the full amount of taxes charged against it, but whose owner has delayed payment of his taxes long enough to give himself opportunity to procure a discount and has thereby incurred the risk of losing his property altogether, and the case of a delinquent taxpayer who has never had his property subjected to a tax forfeiture by virtue of which he might have lost it altogether through having it pass into hands of third parties with whom no compromise could be effected after the period of redemption expired and as to whose rights nothing has been done by the tax collecting authorities that would cut off his right of redemption, in consequence of which he still retains all of his original beneficial rights wholly unimpaired by the tax liens originally impressed upon it in common with others who paid their taxes in order to avoid a foreclosure of same.
I agree to the proposition of constitutional law that the Legislature, without violating the organic principles that the rate of assessment and taxation must be uniform and equal, may allow a remittance of a part of the tax assessed against delinquent lands which have already been subjected to final sale by foreclosure or otherwise for the full amount of taxes charged against them and whose owner has been exposed thereby to the risk of losing his lands altogether, because of his delaying his tax payment long enough to acquire the opportunity for procuring a discount provided such procedure is resorted to by the taxing authorities in an honest effort to dispose of property which has already been forfeited to it for taxes, and which, by thus disposing *Page 161
of it for the best price obtainable, either to the original owner or to some one else, may consequently be liquidated.
But the last stated principle is not applicable to the present case. This is so, because the bill of complaint in this case alleged, without any denial being interposed to rebut it, that the property of the delinquent taxpayer involved in this proceeding has never been subjected at any time to a foreclosure sale in an effort to collect the taxes assessed against it. Therefore, what the City of Marianna is about to do under pretended authority of the legislative Act brought in question in this case, is not to legitimately dispose of a city asset realized and held by it as the result of its completed processes of tax assessment and collection, but rather it is about to make a plain gift to the delinquent taxpayer of a collectible tax asset and presently held by it and capable of being collected in full, and that it is therefore about to unlawfully remit the amount of same in favor of this particularly favored taxpayer to the prejudice of all the others whose current and future taxes will thereby necessarily be proportionately increased through the medium of a higher levy of taxes that will necessarily be resorted to in order to make up for the loss of the existing asset so unlawfully given away to one whose sole claim to favor is his own admitted delinquency.
Were it not for the fact that this question is so fundamental to the future ability of cities and towns to judicially enforce their taxes, I would have nothing to say about the matter in the form of a special opinion on the subject. However, it is obvious to me that under the rule repeatedly laid down by the United States Supreme Court in Greene v. Louisville I.R. Co., 244 U.S. 499 , 37 Sup. Ct. Rep. 673, 61 L. Ed. 1280 , and similar cases, the conclusion expressed in this case that Chapter 17405, Acts of 1935, is *Page 162
constitutional, necessarily means that a new right is now being created on the part of every non delinquent taxpayer in the state (especially on the part of the railroads and public service corporations who are not given the benefit of such legislation) to enjoin in whole or in part every current tax levy hereafter made until they are allowed to realize due credit on their current taxes equivalent to the amount of the delinquencies that may be forgiven and not enforced under the 1935 Act. This is so, because every dollar of taxes forgiven to one man, whether before or after delinquency, casts a proportionately increased burden on those not forgiven. Consequently, unwarranted tax abatements result in an unconstitutional discrimination against those who are not benefited by the practice, and entitle such as are discriminated against to resort to a court of equity for the only relief that can be given them in the premises, namely, a proportionate abatement of their current taxes equal in benefit to them to the taxes remitted to others to their prejudice for past years, which, if collected, would reduce the current taxes they may complain of. Louis K. Liggett Co. v. Lee, 288 U.S. 517 , 53 Sup. Ct. 481, 77 L. Ed. 929 , 85 A.L.R. 699 .
I therefore dissent from the conclusion that Chapter 17405, Acts of 1935, is constitutional, but concur in the reversal of the decree appealed from inasmuch as I do not think it was appropriate for the court below to enjoin the City of Marianna with respect to its settlement of an already pending litigation in the courts brought for the enforcement of delinquent taxes alleged to be due the city. It is within the province of any litigant to settle pending litigation in consideration of the withdrawal of defenses that may be available to be interposed against the relief sought. If the City of Marianna is about to settle the pending tax *Page 163
foreclosures to the prejudice of other taxpayers in the City of Marianna, they should intervene in the other suit and make an objection against the settlement by petitioning the Court to allow them to carry on the foreclosure in the name of the City upon the refusal of the city officers to do so. It is the duty of municipal officers to perform duties that they are lawfully bound to perform for the benefit of the municipal corporation that they represent. When they do not do so they are liable in damages for such default for any loss occasioned thereby. See: First National Bank of Key West v. Filer, 107 Fla. 526 , 145 Sou. Rep. 204 . But that is not the only remedy — an injured taxpayer has a right to intervene in a pending suit in order to insist that such duties be performed in a case wherein a failure to perform them will result in a peculiar and direct injury to the intervening taxpayer should the pending proceeding not be carried to a conclusion.
ON REHEARING