City of Pensacola, Plaintiff in Error, vs. Louisville and Nashville Railroad Company, Defendant in Error; City of Pensacola, Plaintiff in Error, vs. P. & A. R. R. Co., Defendant in Error; Walton, Plaintiff in Error, vs. Wittich, Defendant in Error, 21 Fla. 492

The Chief-Justice delivei’ed the opinion of the court: The 1st point raised by the assignment of errors is whether or not J. B. Walton, Collector of Taxes, of the city of Pensacola, and George Reese, Assessor of Taxes, for the county of Escambia, should have been parties to the petition. Walton, the Tax Collector of the City of Pensacola, was not a necessary party to this proceeding. The petition was filed for the sole purpose of declaring the assessment unlawful under the statute and asked no relief as against the Taje Collector.

As to the latter he had no authority as will be seen hereafter to assess of the extent and value of that portion of the railroad within the limits of said city, nor their passenger, freight, construction or other cars. The law did not enjoin on him the assessment of this part of the property of a railroad company extending its line beyond the limits of said city. It is, by the law, the sole duty of the Comptroller, to assess such part of the property of the railroad company extending into one or more counties or extending into a county and incorporated city or town.

The second assignment of error alleges that the court erred in overruling the plea of limitation as it is styled by the pleader, that is, that said Louisville and Nashville Company never applied to the Board of County Commissioners, at their meeting for the purpose of reviewing and equalizing assessments to set aside or reduce the amount at which said property was assessed. There was no error in sustaining the demurrer to this plea for the reason above as to the assessor.

The duty of assessing the property, the assessment of which is complained of here by the petitioner, is vested exclusively in the Comptroller of the State, and the County Commissioners are not charged with any duty relating to the assessment of the same. The third assignment of error is that the court erred in declaring said assessment unlawful. The statutes of 1881 and 1883, which are substantially the same, so far as the purposes of this case are concerned, provide in

section 45 of each, that the President and Secretary or Superintendent or- Manager of any railroad in this State shall annually make a return to the Comptroller of the State under their oaths of the total length and value of such railroad, including rights of way, road bed, side track and main track, in this State, and the total length of the same in each county, city and incorporated town in this State, also of their locomotives, engines, passenger, freight, platform, construction and other cars and appurtenances.

These acts relating as they do to a special method of assessing a particular kind of property withdrew from the city the right of assessing under its general powers the the kind of property mentioned therein within its limits, to-wit: the side and main tracks, rights of way, road bed, locomotives, engines, cars, &c. This view of the staute is very strongly supported by the Supreme Court of the United States in the case of The Union Pacific R. R. Co. vs. The City of Cheyenne, 113 U. S., page 516.

In this case on a question arising upon the construction of a statute similar to the acts of 1881 and 1883, above mentioned, the court say : “ It seems hardly to admit of a doubt that the object of this scheme was to withdraw the difficult task of assessing fractional parts of a railroad and its property from the hands of local assessors who could hardly be expected to proceed upon any uniform plan, and each of whom would naturally favor his own district.” It is true that the acts are somewhat defective in said 45th section, in only requiring the Comptroller to notify the Assessors of each county of his apportionment.

But if it was so defective as to be impossible of execution, such defect would not have the effect to render inoperative the clause which is the basis of each to charge the Comptroller solely with the duty of assessing this kind of property. We think a fair construction of

section 45 would authorize the Comptroller to apportion the extent and value of the portion of tracks and other property assessable by him to the incorporated towns and cities in each county, as well as the counties, and to notify the assessors of such county of such apportionment of the same. The assessment having been placed on the books of the assessor both as to the extent and value of said property within said city, the city assessor could make his assessment from the book of the county assessor.

Section 46, in cases where the railroad officials make no return of the property, specifically authorizes the Comptroller of the State to ascertain the values required from the best information he can obtain, and apportion the same among the several counties, cities and towns through which the road runs.

The petition alleges that there was not an apportionment under either of said acts to the city of Pensacola of any portion of said railroad property by the Comptroller, and that his apportioment of the part of said road to the county of Escambia and notification to the as-assessor of said county of the same did not specify the extent of value of that part of said road situated in said city. The Assessor of the city assumed that four miles of said road was within the city.

It was neither his right nor his duty to ascertain the extent of the road within the city except from an apportionment made by the Comptroller as to such extent. The Comptroller, the petition alleges, never made such apportionment; this allegation is not denied by the defendant, and for the purposes of this case is admitted to be true. The result is that the Tax Assessor of the City of Pensacola had no authority to make .such assessment, and this part of the assessment is, therefore, unlawful.

As to the wharves and warehouses thereon, the petition alleges that they are not within the limits of the city’' of Pensacola, but said wharves are in the waters outside of said city ; that it is true that the County Commissioners of said county of Escambia, in which said city lies, by proceedings instituted in the year 1877, attempted to extend the boundaries of said city one thousand yards into the water in front of said city, but that their act was without jurisdiction, because the corporate authorities of said city never petitioned the said commissioners to enlarge the boundaries of said city.

This allegation in the petition is not denied in the answer. The act of the Legislature, 1877,

Chapter 3025, Sec. 2, provides that whenever in the opinion of the corporate authorities of any city or town in this State, its boundaries require to be enlarged, the commissioners of the county in which it is situated, may, upon petition of such corporate authorities, authorize such enlargement as may seem to them proper. There can be no doubt either as to the construction of this statute or its application to this case. Without the petition of the corporate authorities required by the statute, requesting the enlargement of the boundaries, the act of the commissioners authorizing the same was void.

There is but one other item of assessment left for our examination, and that is the depot lot on Government and Tarragona streets, valued at $6,000 in 1881, and $2,500 in 1883. This is not the kind or character of property, mentioned in the acts before alluded to, which the Comptroller of the State is required by law to assess. It was properly assessable by the Tax Assessor of the city under

Chapter 3477, Act of the Legislature, 1883, page 86, under the general power granted to municipal corporations to assess and levy a tax upon all real and personal property within their limits. The petition did not allege any illegality as to this item in the assessment, either as to the tax imposed or the methód of assessing the property. An examination of the item in the tax list for 1881, will show that it is substantially in compliance with the law. This part of the assessment we think is good. The court, however, acting in pursuance and under the authority of Basnett vs.

The City of Jacksonville, 19 Fla., page 664, held the entire assessment unlawful. We do not-think the opinion of the court in this case is a correct

interpretation of

Section 4 of the statute,

Chapter 151,Laws of Elorida, which is as follows: “ That in all cases where-assessments are made against any person or persons, body politic or corporate, and payment of the same may be or-shall be refused upon allegation of the illegality of such assessment, such person or persons, body politic or corporate, may apply to the Judge of the Circuit Court by petition setting forth the alleged illegality, and present the same, together with the evidence to sustain it, and the-judge shall decide upon the same, and if found to be illegal shall declare the assessment not lawfully made.” It never could have been the intention of the Legislature to declare an entire assessment unlawful, when the alleged illegality was capable of separation from those parts, of said assessment which were in conformity with the law^ and which were in no manner attacked in the petition setting forth such illegality.

To give it such a construction would be, in effect, to make the judgment extend to and declare unlawful, items of the-assessment which were not complained of or objected to-by the petitioner or considered by the court in its judgment. An assessment can only be declared unlawful as a whole when, the illegality of an assessment is of such a character that it affects every item in the list.

If there be items of assessment which are legal and other-items which are illegal, the assessment under said act should only be declared unlawful in part, that is as to those-parts that are illegal, and should be allowed to stand as to those parts that are legal, unless the legal and illegal are-so blended as to be inseparable. The said case of Basnett vs. The City of Jacksonville, so far as it conflicts with this opinion, is overruled.

Inasmuch as the judgment of the court below is reversed in part, and affirmed in part, and as the part of said judgment reversed was in accordance with the law, as it was declared by this court to be at the time of the ruling ■of the Judge in the court below, under the discretion vested in this court by rule 18, the plaintiff in error must pay the costs of this appeal. Judgment reversed and cause remanded.