S. Forbes Doggett, Appellant, vs. Philip Walter, Tax Collector City of Jacksonville, Appellee, 15 Fla. 355

RANDALL, C. J., delivered the opinion of the court. The appellant filed his bill to restrain the tax-collector of the city of Jacksonville from selling appellant’s lots within the city for taxes thereon assessed for the year 1874, upon the ground that the taxes were assessed without authority of law. It is alleged that the property was taxed at the rate of two per centum for municipal purposes for that year, whereas it is alleged that there was no law authorizing the levying of. any tax except for licenses. The Circuit Judge refused to grant-the injunction prayed, from which the complainant appealed.

The only question raised is, whether there was any law of the State in existence authorizing the levying of city taxes upon property when this tax was levied in, 1874 ? The sixth

section of

Article XII. of the Constitution reads: u The Legislature shall authorize the several counties and incorporated towns in this State to impose taxes for county and corporation purposes, and for no other purpose, and all property shall be taxed upon the principle established for State taxation.”

Section 23 of

an Act to provide for the incorporation of cities and towns, &c., approved February 4, 1869, reads thus : “ That the city or town council shall have power to raise, by tax and assessment, upon all- real and personal estate, and by any other constitutional method of taxation, within the corporation, any and all sums of money that may be required for the use and good government of the.city or town, and for carrying out the powers, rights and duties-herein granted and imposed, and to enforce the receipt and* collection thereof in the same manner as the assessments and taxes of the State are collected.”

Section 24 authorizes the city council to provide for the-election of a treasurer, assessor and collector of taxes. (Laws of 1869. Ch. 1688.) It is claimed that the twenty-third

section above quoted was repealed by the seventy-ninth

section of

an act for the assessment and collection of revenue, approved June 24, 1869, which reads as follows: “ All acts and parts of acts, heretofore passed, relating to assessment and taxation, are hereby repealed.” The latter act contains no express reference to the general incorporation act of 1869, nor any provisions in regard to the power of cities to levy taxes. It is

an act providing-the mode and manner of assessing and collecting taxes, the property to be assessed and the duties of assessors and col-' lectors and of the county commissioners, and prescribes nothing in regard to city taxes except that the charge for licenses by counties and cities shall be fifty per cent, of the amount charged by the State. (Sec. 14.) Next we have “

an act for the assessment and collection of revenue in this State,” which became a law February 29, 1872. (Ch. 1887.) The twenty-fifth

section provides that “all assessments made and taxes levied after the passage of this act shall be in pursuance of the provisions of this act.” It repeals the. seventy-ninth

section of the act of June 24, 1869, above quoted, and amends said act in several particulars, and affects the subject of city taxes only by providing (Sec. 6) that the board of equalization of any county, city or town, at their meeting for equalizing the county, city, or town tax, shall determine the. amount of money to be raised by tax to defray the annual expenses, .such tax not to exceed the amount of the State tax and the amount necessary to pay the interest on bonds issued by the county or city. The State tax was fixed at eleven mills' on the dollar, and to be levied upon the real and personal property.

Section thirteen provides that the tax collector •of any city or incorporated town shall proceed substantially ia the same manner, in the collection of taxes and sale of lands for the non-payment of taxes, as collectors of revenue.

Section sixteen also provides for the sale and redemption, and deeds to "be executed upon sales of land, by the treasurer of the county or city, for taxes.

Section eighteen provides that the clerk of the city shall execute deeds for lands sold for the non-payment of city taxes. The next law on the subject is the act for the assessment and collection of revenue, approved February 17, 1874. The appellant insists that the eleventh

section of this act contains the only authority remaining in the city to collect revenue, and that by this

section it is only authorized to impose a license tax. It provides that no person shall engage in any business or occupation mentioned unless a State license shall be first obtained therefor at the rates specified, and that incorporated cities and counties may impose such further license taxes or rates for county or municipal purposes, not exceeding one-half the amount levied by the State, etc. The sixty-sixth

section repeals the above named acts of June 21,1869, and February 20,1872. And this is the appellant’s proposition: that the twenty-third

section of the act of February 1, 1869, (commonly known as the general municipal incorporation act,) was repealed by the seventy-ninth

section of the act of June 21, 1869, which repealed “all acts and parts of acts heretofore passed relating to assessment and taxation;” that the act of February 29, 1872, authorized cities to levy a tax upon real and personal property not exceeding the amount of State tax; and that all assessments and taxes must thereafter be levied in pursuance of that act; that the act of 1872 was repealed by the act of February 17, 1871; that the several repealing acts do not, in express terms, revive any law already repealed, and hence the city has no power to raise any tax whatever, except for licenses.

Let us examine this act of 1871 further as to its bearing upon these propositions. It provides that real and personal property, not expressly exempted, shall be subject to taxation in the manner provided by law. By

section six, all lands shall be assessed in the county, town, city, etc/ in which the same shall be. By

section eight, the real estate of incorporated companies shall be assessed in the county, city, town, etc., in the same manner as property of individuals. By

section eleven, cities and counties may impose license taxes. ■ Then follow the general directions as to the time and manner of making the assessment, the equalization and correction, the issuing of the tax warrant, proceedings for collection by sale of real and personal property ; and

section fifty-six provides that “ the tax collector of any city or incorporated town • shall proceed substantially in the same manner, in the collection of taxes and sale of lands for the non-payment of taxes, as collectors of revenue.”

Section fifty-eight provides for the redemption of lands sold for taxes by payment of redemption,money to the county clerk or collector of any city or town, who shall give a certificate of redemption. Sections sixty and sixty-one provide for the execution of a deed by the city clerk, if the lands are not redeemed from the sale for city taxes. None of these acts purport to confer upon incorporated cities and towns the express power to levy taxes upon real and persónal estate, except the twentieth and twenty-third sections of the act of February 4, 1869, which are claimed to be repealed. The twenty-third

section of that act, as we have found, expressly confers upon the city or town council the power to raise, by tax and assessment upon the real and personal estate, any and all sums of money that may be required for the use and good government of the city or town, and for carrying out the powers, rights and duties imposed upon them, and to enforce the receipt and collection thereof in the same manner as the assessments' and taxes of the State are collectéd. The question, then, is, Does

section seventy-nine of the act of June, 1869, amend or repeal that section, and destroy the power there conferred ? The language is: “All acts and parts of acts heretofore passed, relating to assessment and taxation, are hereby repealed.” The title of the act containing this repealing clause is, “

an act for the assessment and collection of revenue.” It directs that all lands shall be assessed in the county, town or city where the same shall be, and authorizes the cities to levy license taxes; and beyond this it is but a general act, designating the property liable to taxation, and prescribing the time and manner of assessing property and collecting taxes and licenses. The bill, by its title, purports this and nothing more, and the body of the bill prescribes nothing more.

It makes no reference to the incorporation act, and is in full consonance with it; and some of its provisions, as that all lands shall be assessed in the town or city where situated, can have no signification whatever, if the power to assess property by city governments was abrogated.

If the Legislature did not intend, by the act and the general repealing clause used, to destroy the power of the city to levy taxes and provide the means of its support, but only to change the mode of executing the power, and this intention is apparent from the act and the collateral action of the Legislature, such intention must prevail. “ In the construction of a statute,” says Semmes, J., in the opinion of the court in Bryan vs.

Dennis et al., expressing a well settled rule, “ all laws m pari materia should be considered in order to ascertain the will of the Legislature; for that which is within the intention of the makers of the law is as much within the statute as'if in the letter;' and the intention of the Legislature may often be collected from the cause or necessity of enacting the law.” Lord Mansfield, in Rex vs.

Loxdale, 1 Burr., 447, says : “ Where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other.” And see Kent’s Com., Vol. 1, 460, et seq., and a very valuable collection of maxims and authorities found in Blackwell, Tax Tit., 606-634. The citations of counsel from Dwarris and other authorities are in accord with the above rules.

In recent cases in the Supreme Court of the "United States-, it was held that a resolution of Congress defining and declaring the intent and meaning of

an act of Congress, controlled the judicial construction. (Bigelow vs. Forrest, 9 Wallace, 339.) The argument of the appellant’s counsel is, that the

section of the city incorporation act which did confer upon the municipal authorities the power to levy taxes is swept away by the language of the repealing act, which repeals “ all laws heretofore passed relating to assessment and taxation and yet every act passed relating to the subject of taxation has recognized the existence and validity of that

section by providing the mode and manner of its exercise. The Legislature have treated it as unrepealed, and'have regarded the phraseology of the repealing act “ relating to assessment and taxation ” as referring to the mode and machinery'of levying taxes, and principles of taxation, and not to the power. This harmonizes with the view of this court in the case of Shear vs.

Commissioners of Columbia County, 14 Fla., 146, as respects the effect of this repealing clause, in which case it was held that a law providing a remedy against illegal assessments, though relating to the subject of assessments, was not affected by the repeal.

The construction contended for would, in effect, destroy every municipal government in the State by abrogating its power to do what it is required to do. ¥e have shown, by an examination and recital of the details of the several acts passed since the repealing clause, that the Legislature contemplated the continued exercise of the power of taxation by the city and town councils. (See also Chap. 2045 of the Laws of 1875, amending the very

section which is claimed to be x-epealed.) It is ax’gued that the law-making power may be exercised even to the complete annihilatioxx of the power to levy taxes by mxxnicipal bodies, as, it is claimed, was done by the stipposed repeal. In view of the provision of

section six, Art. XII., of the Constitution, x-equiring that the Legislature shall authorize incox-porated towns to impose taxes on property and license taxes for xnunicipal purposes, it may be well doubted whether the Legislatux’e can, after confe r-ring the powex1, abrogate it to such extent as to render, the cox’poration impotent, unless it be intended to destx’oy the cox-p orate organization itself. Having concluded that the

section conferring the power to levy the taxes upon property is not expressly or by implication repealed, but treated by the Legislature in every instance as still in force, we inquire, has that

section been amended in any manner so as to affect the power to levy the tax in controversy ? The constitutional provision in regard to amendment of statutes requires that the section, as amended, shall be re-enacted at length. (Sec. 14, Art. IV.) We do not find that this has been done. The act of February 29, 1872, limited the amount which cities might levy upon property to the maximum amount of the State tax (which was fixed at eleven mills,) and the amount necessary to pay interest on bonds issued. This is a mere limitation as to amount, not as to the power to levy, and did not become a part of the

section in question. It was a limitation of the discretion, without affecting the power to tax, and has the same effect as if it were an additional independent

section of the incorporation act. The act of 1874 repeals this act of 1872, leaving no statute in existence limiting the amount, save the original

section twenty-three of the act of incorporation, which authorizes the city .council to raise the amount necessarily required for the use and good government of the city and for carrying out the powers granted and duties imposed. The order of the Circuit Court is affirmed.